A Spanish man using the pseudonym “Frikidoctor” has been posting videos to a major video-sharing web site that detail the events of several upcoming episodes of a popular medieval fantasy TV series, including some key plot twists. Frikidoctor’s video “predictions” (which later turned out to be remarkably accurate) were also translated to English and posted to Reddit. At some point, the videos had been taken down from the web site, marked with “copyright claim by [a major cable TV network].” Reportedly, the network is asserting that these videos are infringing on its copyright even if some of the videos do not contain any actual video footage or stills from their hit series. After the videos were removed, Redditors began fervent discussions about whether or not the network was entitled to remove those videos. Some legal experts claim that by giving detailed plot information, one could possibly be liable for copyright infringement. This is, however, not clear. Interestingly, the web site has since restored the videos.

Copyright Protection Does Not Extend to Ideas

In principle, copyright protection does not extend to information and ideas themselves. The protection only covers the specific form or manner in which information or ideas are expressed (e.g., a book, play or film).

However, the German Federal Supreme Court affirmed in its Laras Tochter decision that, under the German copyright regime, the protection afforded to a work by copyright went beyond the concrete textual representation of a thought. Rather, the copyright protection extended to components of the work that lie in the telling of the story, in the individual traits and roles of the characters involved and in the arrangement of scenes and scenery. Accordingly, the originality test vested in sec. 2 para. 1 No. 1 of the German Copyright Act (UrhG) did not confine itself to the written word, but also to plot, characters and scenes, as long as they are each original enough to be protectable. Basic plotlines (e.g., a love story about two young people from rival families), however, are merely considered ideas and, therefore, not copyrightable.

But Could Plot Elements Be Copyrightable?

Assuming that the TV series’ plotline is in fact copyrightable, the question remains of whether spoiling single elements of the plotline could be infringing under the applicable national copyright regimes. Where literal similarities between storylines are concerned, even small textual elements are considered to be copyrightable on their own. For example, reproducing an 11-word passage of a novel could be considered copyright infringing—provided, of course, that one does not act within the scope of copyright limitations and exceptions (e.g., citation rights).

This assumption does, however, not necessarily apply in the same way to non-textual elements, when literal similarities between the works are not at issue. In the case of so-called “non-literal” similarities between works, it is unclear whether and, if so, under what circumstances, single plot elements could be copyrightable on their own.

Does spoiling plot details amount to copyright infringement? That question cannot yet be answered with precision. Lawmakers and courts have not yet provided us with sufficient guidelines to address the issue. The only reasonable answer for now is that, yes, in some cases single plot elements could be copyrightable on their own, depending on the circumstances.

 

This article was originally published on AllAboutIP – Mayer Brown’s  blog on relevant developments in the fields of intellectual property and unfair competition law. For intellectual property-themed videos, Mayer Brown has launched a dedicated channel available here.

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