A U.S. District Court in New York has dismissed Roger Dean’s lawsuit against James Cameron: Dean had claimed aspects of the Avatar planet Pandora were stolen from his artwork.
Dean’s art has appeared on top-selling record albums by many bands, among them Yes and Asia, been displayed in museums and published in books. And when Dean’s suit was announced last year, Harlan Ellison, who won a settlement from Cameron over Terminator in in the 1980s, said he was eager to testify in Dean’s behalf. (He wasn’t called upon.)
Judge Jesse M. Furman wrote in his decision that some of the similarities between Dean’s work and elements of Avatar are due to both drawing on images in nature, which is in the public domain, while other elements in Dean’s works that are protectible are overwhelmed by the differences between them and the scenes in the movie.
For example, the “Hallelujah Mountains” [in Avatar] are depicted, in photorealistic detail, as massive floating islands of different shapes and sizes densely blanketed with plants, trees, and other vegetation. By contrast, Plaintiff’s works are more stylized and fantastical, featuring smaller, egg-shaped islands —more akin to large boulders than mountains —with little or no vegetation other than a prominent, solitary tree almost as large as the island itself.
Dean’s loss is just the latest in an uninterrupted series of rulings against plaintiffs who claimed they were owed money or ought to receive damages for the use of their work in Avatar.
Kelly Van sued Cameron in 2010 saying Avatar was based on his 2003 book Sheila the Warrior: the Damned. His case was thrown out of court by a judge who said the “plot similarities are abstract ideas that are not protected by copyright.”
In 2013, courts dismissed claims by Eric Ryder, who alleged the movie ripped off his story K.R.Z. 2068, described as an “environmentally-themed 3-D epic about a corporation’s colonization and plundering of a distant moon’s lush and wondrous natural setting,” and by Gerald Morawski, who had sued for breach of contract, fraud and negligent misrepresentation because he had pitched a project to Cameron’s people titled Guardians of Eden and that he signed a nondisclosure agreement which expressly provided that he would retain his original ideas.
Cameron has also won cases brought by Emil Malak, claiming the film infringed his 1998 screenplay Terra Incognita, and Bryant Moore, arguing his screenplays and drawings had been used to create Avatar.
Reportedly the statute of limitations for filing copyright infringement claims expired in December 2012. However, there may be different limits for other causes of action that might leave the door open for more suits.
Avatar has been a litigation magnet since earning nearly $2.8 billion in box-office receipts. It’s reputed to be the top earning movie of all time, although an interesting footnote in the Dean decision, quoting the scholarly book Principles of Macroeconomics, questions the #1 ranking:
“Movie popularity is usually gauged by box office receipts. By that measure, Avatar is the number 1 movie of all time with domestic receipts of $761 million . . . . But this ranking ignores an obvious but important fact: Prices, including those of movie tickets, have been rising over time. Inflation gives an advantage to newer films. When we correct box office receipts for the effects of inflation . . . [t]he number 1 movie is now Gone With the Wind ($1,604 million) . . . . Avatar falls to number 14.”