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Could computer-generated characters belong to the creators of the underlying software and not to the studios that used it to generate the actual characters?
That specter now haunts Hollywood, where computer generated imagery (CGI) has come to play an increasingly important role in blockbuster movies, as a new lawsuit raises complex issues of technology, creativity, and intellectual property.
In July, a Silicon Valley company called Rearden LLC filed suit in federal court in San Francisco against Disney, Paramount, and 20th Century Fox, alleging that they used stolen technology — Rearden’s patented and proprietary CGI program called MOVA — to create characters in numerous popular films. The lawsuit seeks royalties for the copyrights in those characters, over which Rearden claims ownership.
Specifically, Rearden claimed in a press release that MOVA:
has been used in films to capture the most subtle facial performances from actors such as Brad Pitt in The Curious Case of Benjamin Button, Jeff Bridges in Tron: Legacy, Mark Ruffalo as the Hulk in The Avengers, Daniel Radcliff and Rupert Grint in Harry Potter and the Deathly Hallows, Parts 1 and 2, and many other blockbuster movies.
The software empowers video effects engineers “to project the actors’ captured facial performances onto computer generated (CG) faces bringing the CG characters to life.” (Full disclosure: Rearden’s founder is my wife’s distant cousin.)
More specifically, Rearden alleged that its technology:
enabled studios to show Brad Pitt as an 87 year-old man, project Mark Ruffalo’s facial performance onto the Hulk’s face, show Jeff Bridges as he had appeared almost 30 years ago in the original TRON film, and transform Rupert Grint’s face into Daniel Radcliff’s in Hallows. Button, TRON: Legacy, Avengers, Hallows 1 and 2, and ten other films that hired Rearden for facial motion capture have collectively earned major motion picture studios $9.5 billion worldwide in box office alone.
Rearden seeks a portion of that nearly $10 billion kitty as royalties for the copyrights created by MOVA and marketed without authorization by the studios. The original complaint was fairly complex, involving alleged trade secret misappropriation and possible industrial espionage by a Chinese technology company.
But a more interesting question arose last month after the studios moved to dismiss the complaint in its entirety.
Fox, Paramount, and Disney claimed that even assuming everything Rearden claimed is factually true, no legal authority exists supporting the proposition that the copyrights on the CG characters belong to the software developer. If true, the studios insisted, “then Adobe or Microsoft would be deemed to be the author-owner of whatever expressive works the users of Photoshop or Word generate by using those programs.” Such a ruling would have far-reaching implications indeed.
Rearden dismissed this analogy out of hand, however, responding instead by pointing to a recent case involving Michael Drosnin’s controversial book “The Bible Codes.” There, Drosnin used software designed to analyze the Hebrew characters in the Torah (the portion of the Old Testament also known as the Pentateuch, or First Five Books of Moses) to discern textual patterns and then published the resulting matrix. The software developer successfully sued Drosnin, claiming to own the copyright on the matrix itself. In the key passage, a New York federal court held that:
an end-user’s role in creating a matrix is marginal. Creating a matrix is unlike the creative process used in many computer art programs, which permit an end-user to create an original work of art in an electronic medium. It is fair to say that users of such programs often supply the lion’s share of the creativity to create the screen display. By contrast, an end-user of the Software merely inputs a word or phrase which the Software searches for in the Database. Thus, the Software does the lion’s share of the work. Indeed, Drosnin’s inputs, generally consisting of no more than a single word or phrase, would fail to meet the minimum threshold of originality. In short, Drosnin is not the author of the matrixes.
Here, Rearden claims that, like Drosnin, the visual effects engineers at the studios simply input stock, predictable parameters into MOVA, and any creativity inhering in the resultant characters belongs to the software developer, who performed “the lion’s share of the work,” or, in Rearden’s phrasing, “substantially all . . . of the operations required to produce the outputs.”
For their part, the studios argue strenuously that their visual effects whizzes are far more than peons, mindlessly entering inputs into the magic MOVA machine, and that any originality in the various CG characters should rightfully be attributed to their (and the director’s and screenwriter’s) skill and creativity.
The decision could massively affect Hollywood, where more and more films have come to rely on CGI, with great financial success.
Ultimately, the court will have to decide which analogy best fits this case: photoshop manipulators or Bible code processors? We’ll find out soon enough.
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