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"Knocked Up" Studio Lawyers Up:

The WSJ law blog reports that writer Rebecca Eckler is suing Judd Apatow and Universal Studios for copyright infringement alleging the hit movie "Knocked Up" is partially based upon Eckler's book. I have no idea whether this suit has any merit, but I do know that "Knocked Up" is hilarious.

NYU 2L:
Looks like a loser of a lawsuit to me from the plot descriptions. Has anyone both read the book and seen the movie who might have some idea what she can build a lawsuit on? It's a standard rule that you can't copyright a title, after all. And using unplanned pregnancy as a central plot element, even as it affects the lives of modern professional women, can't be copyrightable--it's only slightly less standard than aliens attacking Earth in the sci-fi genre.
6.7.2007 12:27am
NYU 2L:
Ah, saw the Maclean's article with more specifics on the claim. Still seems like a loser of a suit, and a lot of the claims of copying seem to revolve around Ms. Eckler's odd belief that she's the first modern woman to ever go through pregnancy. For example:

And then there's this one scene in the screenplay and movie, where Alison and Ben are having sex. Ben stops. Ben, in the screenplay, says, "My dick is like, four inches away from its head. What if it kicked on purpose 'cause it didn't like it?" I actually wrote in my book about a joke I once heard, "A man and his pregnant wife had regular sex throughout her pregnancy. When their son was born, the father held him in his arms. The baby looked up at his new father and, without warning, punched him. 'See?' said the baby. 'Now you know what it feels like to be bonked in the face.' "

I don't think there's a man alive who's even thought about having sex with a pregnant woman without having similar thoughts to that joke. Not copyrightable.
6.7.2007 12:36am
Malvolio:

[Eckler writes:] You can't copyright a title, or an illustration.
Yes, you can copyright an illustration, but Eckler didn't make the illustration and so doesn't hold that copyright. And the whole thing sounds fishy: screenplays don't typically have illustrations on the cover.

Her entire case seems to turns on the basic premise, the fact that the careers of the heroines are somewhat similar (a newspaper reporter and a host of a E! "news" show), the fact that both the heroes come from Canada (apparently the director was so devious, he actually hired an actor from Canada to play the part and then to cover that deviousness, gave all the other characters names and back-stories to match the actors who played them), and yes, that incredibly old, incredibly lame joke.

I don't see it surviving summary judgment.

(By comparison, try reading the source material for Full Metal Jacket, The Short Timers. Almost word-for-word the same, but that weasel Kubrick tried to cut the story-by credit.)
6.7.2007 12:56am
NYU 3L:
(Same person as NYU 2L above, but I just realized the school year's over)

Her complaints about Hollywood lawyers also ring extremely hollow. Specifically:

1: Her agent referred her to a lawyer. That lawyer represented Apatow. The lawyer immediately told her he had a conflict and sent her elsewhere, and offered a referral. She took it; she didn't have to.

2: The referred lawyer offered to take her case, then realized a few weeks later that he had a similar conflict and told her he couldn't represent her. She apparently considers this akin to "being dumped". It doesn't say if she told the second lawyer who referred him to her; 5 bucks says she didn't. Anyways, this lawyer sent her a bill, then backed off when he realized what happened. Again, 5 bucks says the lawyer doesn't send out the bills personally, and it was a fairly honest mistake. 500 if the lawyer works for a large firm. She considers this a "betrayal", an odd term for cutting off the attorney-client relationship due to a conflict. She says:

I started to hate Hollywood, especially Hollywood lawyers. Here I was, after months of dealing with this lawyer, back to square one. Now I'd have to find another law firm, one that didn't deal with either Apatow or Universal. It was clearer than ever that fighting a large movie studio and a major Hollywood player to prove that Apatow had stolen my book was going to be tough.

Oh, boo hoo. My parents went through a divorce that took 10 years for litigation to end, often with the courts refusing to take any action to ensure payment of child support. In the ranks of people hurt by legal system inefficiencies, you don't have any room to talk.

And some more: I've also learned that if I went through with the lawsuit and lost, I would, in addition to my own legal fees, have to pay theirs. She could have to, at least. Probably not--it seems like a losing suit, but not a frivolous suit. But we don't live in a loser pays system.

But the process is so painfully slow. I could pop out another two babies before this thing ends. Trial dates will not be until March 11, 2008. Unless we settle before then.

[sarcasm]What? You mean it takes a year for a federal civil suit to go from complaint to trial? I didn't know that! Did you know that![/sarcasm]

Good God, I'd hate to have this woman for a client. "They want me to answer questions?? But they're the ones who stole my idea! How dare they! I feel violated!"

SJ for defendant.
6.7.2007 4:19am
David M. Nieporent (www):
She could have to, at least. Probably not--it seems like a losing suit, but not a frivolous suit. But we don't live in a loser pays system.
There's an attorney's fees provision of the Copyright Act. 17 USC 505. Allows, but doesn't require, the court to award fees to the prevailing party.
6.7.2007 4:22am
NYU 3L:

There's an attorney's fees provision of the Copyright Act. 17 USC 505. Allows, but doesn't require, the court to award fees to the prevailing party.


Of course, but there's still no British rule in the area. See Fogerty v. Fantasy, Inc., 510 U.S. 517. It seems unlikely that in this case, where the claim looks to be in good faith and the author is reasonably concerned that her work was plagiarized (in a moral sense, it very well may have been), that a court would order her to pay attorney's fees.
6.7.2007 4:39am
AppSocRes (mail):
Her lawsuit looks like a loser, but her complaints about small IP producers vs big companies with large legal staffs ring true to me. I recently sold for a pittance an invention (patent) that might very well be worth tens of millions. The problem is that defending the patent would have involved chancy litigation costing tens or hundreds of thousands of dollars. Without a deep-pockets backer I was lucky to recover any money at all.
6.7.2007 9:16am
PersonFromPorlock:
AppSocRes:

You were indeed lucky; for most of us there is no US patent system because of the high entry costs.

JA: sorry for the digression but the USPTO is a pet peeve of mine.
6.7.2007 10:05am
JosephSlater (mail):
Nothing on the merits, but congrats to NYU3L for making it through another year. Two-thirds done, I assum.
6.7.2007 11:30am
JosephSlater (mail):
"assume."
6.7.2007 11:31am
NYU 3L:
JosephSlater-

Yes, and thanks. And as a summer associate, I still can get downtime to respond to lawblog posts!
6.7.2007 11:36am
Hattio (mail):
She could have two more children by March 2008? Wow. Seems like she has something interesting to write on.
6.7.2007 11:39am
Joel Rosenberg (mail) (www):
Sheesh. Ideas aren't copyrightable, although they can be otherwise protected -- say, if they turn into patents. (Maybe Diane Duane should have patented the idea of kids training to be wizards and sued Rowling? Nah.)
6.7.2007 11:48am
gvibes (mail):
AppSocRes - What do you mean by "defending the patent"? Did someone sue you for a declaratory judgment of invalidity?
6.7.2007 12:49pm
Loren (mail):
Other supposed similarities from the Macleans article:

"in my book I was an up-and-coming newspaper reporter."

According to the back cover of her book, Eckler was a 30-year-old newspaper columnist, not a reporter.

"In the movie version, Alison has a sister, named Debbie, with screaming children, who is her sounding board."

Debbie's children aren't really screamers, and Debbie's role in the movie isn't really to be Allison's 'sounding board.'

"What also got my back up was that Ben, the man who gets Alison knocked up, is not only Jewish, but from Canada, like my man. (I still can't figure out why the fact that someone was Canadian would add value to any movie.)"

Because Seth Rogen is Jewish and from Canada. I'm pretty sure his character in 'Undeclared' was from Canada too.

And judging from the story description on the back cover of Eckler's book, her book is mostly about the adjustments she had to make as a pregnant woman, with her fiance being a minor supporting character. The movie, on the other hand, is primarily a story about Ben growing up.
6.7.2007 2:34pm
dysfunctional gadfly:
I think I saw a stand-up comic do that joke about the baby hitting the father like a decade or more ago.
6.7.2007 2:49pm
Carolina:
The NYTimes Sunday Magazine recently had an extensive article about Judd Apatow, the writer/director of Knocked Up. The article spends a lot of time discussing the writing process for Knocked Up. Having read the NY Times piece, I'd be very surprised if Apatow lifted anything from Ms. Eckler.

NY Times Magazine Piece on Apatow
6.7.2007 2:51pm
Tearfree (mail) (www):
Over at my blog, we're doing a crowd sourcing experiment asking readers to find earlier examples of the things Eckler claims to have been the first to write about. So far, we have found several prominent pop culture examples not to mention more than a dozen Canadian Jewish men who deserve to have movies made about them.

I would like to ask the lawyers here why you would consider a case like this to be in good faith and not frivolous when a bunch of people on the Internet can dig up multiple examples of scenarios that the plaintiff and her lawyer seem to think are unique. Really, isn't that why we pay you the big bucks? Tell me that I'm missing something here.

http://byekoolaidmoms.blogspot.com
6.7.2007 4:43pm
NYU 3L:

I would like to ask the lawyers here why you would consider a case like this to be in good faith and not frivolous when a bunch of people on the Internet can dig up multiple examples of scenarios that the plaintiff and her lawyer seem to think are unique. Really, isn't that why we pay you the big bucks? Tell me that I'm missing something here.


Because showing infringement is hard, and the combination of lots of common elements can become something unique. For example:

A son with similar powers to his father;
A group of rebels fighting an evil empire;
Zen-like warrior sayings;
The rogue falling in love with the rescued princess;
An elderly mentor figure who dies, inviting his pupil to avenge him...

All of these are fairly common plot elements. Put them together and you get Star Wars, which is obviously copyrightable. At what point does the combination of common plot elements become a unique and copyrightable story? The question is difficult enough that here, the case doesn't seem frivolous.
6.7.2007 7:00pm
Syd (mail):

Loren (mail):
"In the movie version, Alison has a sister, named Debbie, with screaming children, who is her sounding board."

Debbie's children aren't really screamers, and Debbie's role in the movie isn't really to be Allison's 'sounding board.'


The kids are very likable and generally well behaved. The parents, on the other hand, have some problems. (I thought it was nice that Apatow cast his wife and two children as Debbie and her two children, although I assume their own marriage is in better state that Pete and Debbie's.)
6.7.2007 7:10pm
Tearfree (mail) (www):
People who want to define copyright as loosely as Eckler's lawyers appear to do worry me. I'm in the Lessig camp on this one and comforted by the fact so many of those commenting here don't believe Eckler has much of a case.

A commenter at my blog noted too the oddity of her lawyer Gary Gorham's website. The heads of all the people in the photos are cut off. Perhaps, as another commenter said, it is because they have indeed lost their heads.
6.7.2007 8:04pm
keypusher (mail):
I have no sympathy for the plaintiff based on the little I know, but it's useful for lawyers (and future lawyers) to be reminded how the legal system looks from the outside.

NYU3L

The referred lawyer offered to take her case, then realized a few weeks later that he had a similar conflict and told her he couldn't represent her. She apparently considers this akin to "being dumped". It doesn't say if she told the second lawyer who referred him to her; 5 bucks says she didn't. Anyways, this lawyer sent her a bill, then backed off when he realized what happened.

If someone doesn't have experience with lawyers and law firms, this would be a little bit like hiring a party planner (yeah, I'm reaching, I know), then have the party planner back out on you a few weeks later, and send you a big fat bill for doing nothing (from your point of view). Most people who hire someone expect to pay money for actual assistance, not time spent figuring out he can't help you.

My parents went through a divorce that took 10 years for litigation to end, often with the courts refusing to take any action to ensure payment of child support. In the ranks of people hurt by legal system inefficiencies, [Eckler doesn't] have any room to talk.

You have my sympathy, as do your parents. Divorce is bad enough without a court making it worse. But isn't it strange to say to someone who complains about the legal system, "really, you have no right to complain -- in fact, you're lucky it isn't much, much worse?" If someone says a doctor treated her rudely and overbilled her, should we tell her she's lucky he didn't cut off her arm?

But the process is so painfully slow. I could pop out another two babies before this thing ends. Trial dates will not be until March 11, 2008. Unless we settle before then.

[sarcasm]What? You mean it takes a year for a federal civil suit to go from complaint to trial? I didn't know that! Did you know that![/sarcasm]


I have a pretty small securities fraud case that is going to trial (Inshallah) after six years. (It's almost entirely the parties' fault, and I've only been on it about six weeks, thank God.) But again, from Eckles' perspective, what Apatow did is basically plagiarism. Why should it take a whole year to even start the trial?
6.7.2007 9:14pm
NYU 3L:
keypusher-

If someone doesn't have experience with lawyers and law firms, this would be a little bit like hiring a party planner (yeah, I'm reaching, I know), then have the party planner back out on you a few weeks later, and send you a big fat bill for doing nothing (from your point of view). Most people who hire someone expect to pay money for actual assistance, not time spent figuring out he can't help you.

I'd sympathize with the complaint if the lawyer had pressed her for money, rather than backing off immediately. But other than the money, that's essentially the situation. If you hire a party planner, and she then tells you two weeks later that she had spaced out and already has a prior commitment to someone else's party, you shouldn't treat it as a personal attack and betrayal (unless there's a time problem where you can't get another party planner on short notice--not the case for Eckler). It's an honest mistake as part of a business relationship. If you can't tell the difference between business and romance, you may not be mature enough for either.

You have my sympathy, as do your parents. Divorce is bad enough without a court making it worse. But isn't it strange to say to someone who complains about the legal system, "really, you have no right to complain -- in fact, you're lucky it isn't much, much worse?" If someone says a doctor treated her rudely and overbilled her, should we tell her she's lucky he didn't cut off her arm?

I don't know about telling her she's lucky, but maybe that it's not such a big deal and the doctor isn't representative of the medical profession as a whole? In the ranks of life's hardships, may "finding a new lawyer" be the worst we have to deal with. But to Ms. Eckler, she's the center of the universe. Attorneys aren't allowed to tell her they're conflicted out of representing her. No one's allowed to tell a story remotely similar in any way to her memoirs. No one else would think to construct a story around the hardship of an unplanned pregnancy. Her insights are unique and novel.

My point isn't that the lawyers were only rude to her, it's that they weren't rude at all! They were in fact extremely ethical, disclosing conflicts as soon as they knew about them and refusing to put themselves in a position where they couldn't vigorously represent a client. At worst, lawyer #2 was spacier than average, but getting a mistaken bill is a fairly common annoyance from lots of different service professions. That the lawyer didn't press the bill indicates that it was probably a miscommunication between the lawyer and the billing dept.

I have a pretty small securities fraud case that is going to trial (Inshallah) after six years. (It's almost entirely the parties' fault, and I've only been on it about six weeks, thank God.) But again, from Eckles' perspective, what Apatow did is basically plagiarism. Why should it take a whole year to even start the trial?

Hopefully, if she has an ethical lawyer (seems like lawyer #3 is slimier than the first 2), that lawyer would explain to her that both sides get to discover evidence that can be used to construct arguments, and that discovery can take a long time. On her side, it would involve looking through tons of working documents from Apatow and Universal. On Universal's side, it would involve a similar analysis of these documents and probably depositions of Ms. Eckler and her publisher. On top of all that, the federal courts are increasingly overcrowded, pushing back court dates.

Should it take so long for cases to come to court? A year for a complex copyright litigation seems fairly reasonable, while some of the decade long messes seem excessive and mostly a result of sharkish delaying tactics. Again, if Ms. Eckler was less self-absorbed, she might see that while she believes this is clear-cut plagiarism, the rest of the world is more skeptical and demands something more substantial. Better to wait a year and maybe pull a case together than to go to court now, and lose on summary judgment after resting on her currently weak set of facts.
6.8.2007 3:31am