Derivative of a Derivative

From this morning’s New York Times:

A lawsuit claims that Steven Spielberg, DreamWorks and Paramount Pictures copied a short story that was the basis for the Alfred Hitchcock movie “Rear Window” when they made the thriller “Disturbia,” Reuters reported. The copyright-infringement suit was filed on Monday in Manhattan by the estate of Sheldon Abend, which owns the rights to the 1942 Cornell Woolrich story on which the movie is based. [The story is titled “It Had to Be Murder.”] The suit says that the makers of “Disturbia” should have obtained film rights to the story, as Hitchcock and James Stewart, who starred in “Rear Window,” did. “Disturbia” stars Shia LaBeouf, above, whose character spies on his neighbors, including a man he suspects is a serial killer.

Wired has the AP report, and a quick comment.
Let us hope that the case gets dispatched as quickly as any of Hitchcock’s celluloid victims. Abend, as copyright mavens will recall, took Hitchcock and Stewart to the Supreme Court in an ultimately successful effort to establish the proposition that permission to make “Rear Window” under the original copyright term of Woolrich’s story did not include permission to distribute or publicly perform the film under the renewal term. Stewart v. Abend, 495 U.S. 207 (1990). This time, the claim should be a loser.

The legal issue here is far more simple than the one the Court confronted in Stewart v. Abend: Is “Disturbia” an unauthorized derivative of Woolrich’s short story, “It Had to Be Murder”? A relatively simple comparison of the two shows that rarity of copyright answers: a clear no.

Setting:
It Had to Be Murder — the rear windows and courtyard of a New York City apartment block; the narrator (the story is told in the first person) is looking out his rear window.
Disturbia — the suburbs; the main character (the film is presented in the third person) is looking at his next door neighbor’s house.

Plot:
It Had to Be Murder — the narrator, an adult incapacitated by a cast, watches his neighbors, quickly deduces that a neighbor has murdered his wife, and has to persuade the police to investigate. He sends his “houseman,” Sam, on a risky journey to collect evidence. Eventually the police arrive, chase the perpetrator across the roof, and shoot him.
Disturbia — the narrator, an adolescent incapacitated by a court order that he remain at home, watches his neighbors and (i) becomes infatuated with the girl next door to one side and (ii) suspects that his neighbor is a serial murderer and tries to persuade the police to investigate. He sends his best buddy on a risky journey to collect evidence. Tension heightens when the boy’s mother goes next door to smooth neighborly relations. She is kidnapped. A police officer responding to the scene is killed. Eventually the boy and his mother escape and kill the serial murderer. Boy and girl next door unite.

Characters:
It Had to Be Murder — An adult male, immobilized in his apartment by a cast that results from a accident suffered while photographing a car race.
Disturbia — An adolescent boy, confined to his suburban house by house arrest, following misbehavior in the wake of an astonishingly graphic auto accident sequence in which his father is killed.

That’s only the thinnest of comparisons, but some key details — the vastly different setting, the vastly different nature of the lead character, of the villain, and of the love interest — point sharply away from a finding that the two works are “substantially similar” and away from a finding that the film is based on or an adaptation of the short story. There is a similarity only, possibly, at the level of idea.  Both works feature a voyeur with some mobility constraints who discovers that one or more homicides has been committed next door. Aside from the similarity question, the plaintiff also may have a problem proving that the producers of “Disturbia” copied the copyrighted short story. “It Had to Be Murder” is hardly in wide circulation, and it seems unlikely (possible, but unlikely) that any of the production team had a copy in hand.

When “Disturbia” was released last year, however, the similarities between the film and “Rear Window” — which is an incontrovertible derivative of “It Had to Be Murder” — were widely noted. Beyond the similarity of ideas, the key connection may have been the protagonist’s love interest. In “Rear Window,” Stewart’s character is motivated largely by conflict and resolution with his girlfriend, Lisa, played by Grace Kelly. In “Disturbia,” the protagonist, played by Shia LaBeouf, has a similar motivation in Ashley, played by Sarah Roemer. In addition, at the climax of “Disturbia,” Shia LaBoeuf’s adolescent is himself at risk in the effort to catch the killer. At the climax of “Rear Window,” Stewart’s invalid is suspended from his window during a fight with the killer — and Stewart falls to the ground, in a spectacularly Hitchcockian addition to the narrative.  One might argue that the producers of “Disturbia” had access to “It Had to Be Murder” because they had access to “Rear Window.”

Grace Kelly’s character, however, does not appear in “It Has to Be Murder.” Stewart’s character in “It Had to Be Murder” is threatened by the killer — who shoots at him, at one point — but the climactic and determinative chase in the short story is on rooftop, and the protagonist is watching, not participating. “Disturbia” may be a “substantially similar” adaptation of “Rear Window” (I doubt even that conclusion, but I’ll assume it here), but the similarities arise not because both films are based on Woolrich’s story, but instead because “Disturbia” borrows and adapts some of the innovations that Hitchcock and Stewart introduced — which the “It Had to Be Murder” copyright, despite its breadth, cannot encompass. Neither Woolrich, nor Abend, nor Abend’s estate are the copyright “authors” of the material that Hitchcock added to “Rear Window.” “Disturbia” is, at most, a derivative work of a derivative work, or what might be called an “indirect derivative work.”  Abend’s estate should be out of luck.