PROTECTION OF CHARACTERS: CREATOR OF THE MOODSTERS SUES THE WALT DISNEY COMPANY OVER ALLEGEDLY STOLEN CHARACTERS BERTIE MAGIT Abstract: Movie studios, authors, musicians and other creative-types frequently find themselves on the receiving end of lawsuits for copyright infringement. Factual elements such as whose idea was first and whether the original work was protected under copyright may become wholly irrelevant if the two works are markedly different. In June 2017, Childhood Development expert Denise Daniels filed a complaint against The Walt Disney Company for copyright infringement of her anthropomorphous, color-coded emotion characters she originally conceived as The Moodsters. Daniels alleged that these characters were the real inspiration for Disney-Pixar's Inside Out and Walt Disney Company has stolen the essence of her characters. I. INTRODUCTION Human emotions are complex. 1 Some people choose to look inward at their own emotions with therapy; others turn to science to gain a better grasp on how emotions work in general. 2 In 2015, Disney/Pixar sought to explain emotions by way of animation in their film Inside Out. 3 The film won many prestigious awards, including the Academy Award for Best Animated Feature Film of the Year, and it grossed over $850 million at the box office worldwide. 4 There is no doubt that the film is accomplished, but is it original? 5 Childhood development expert Denise Daniels filed a complaint in June 2017 1 See Susan Krauss Whitbourne, The Complete Guide to Understanding Your Emotions, Psychology Today (May 19, 2012). 2 Id.; Manuela Lenzen, Feeling Our Emotions, Scientific American Mind (April 1, 2005), https://www.scientificamerican.com/article/feeling-our-emotions/?print=true. 3 Disney Movies, http://movies.disney.com/inside-out (last visited Nov. 8, 2017). 4 Inside Out IMDB, http://www.imdb.com/title/tt2096673/ (last visited Nov. 6, 2017). 5 First Amended Complaint at 2, Daniels v. Walt Disney Co., No. 2:17-cv-04527-PSG-SK (C.D. Cal. Sept. 20, 2017). Copyright Boston College, Bertie Magit 1
alleging Inside Out is based on The Moodsters, a children s brand she created and television program she pitched to Disney. 6 Inside Out focuses on the five emotions living inside eleven-year-old Riley s head. 7 The story explains how these emotions influence who she is and how their actions affect the world around her. 8 The characters in Inside Out are named for the emotion they embody: Joy, Sadness, Fear, Anger, and Disgust. 9 Joy is a petite yellow fairy-looking being with blue hair, big eyes, and a bright outlook on life. 10 Sadness talks slowly and is blue in appearance and in disposition. 11 Fear resembles a frazzled purple exclamation mark who sees the potential disaster in most situations. 12 Anger is the squat red character who loudly grumbles and yells to such extremes that his head can turn into an active volcano. 13 Finally, Disgust is fashionable and green with a propensity for rolling her eyes. 14 Daniels, creator of The Moodsters, is a Peabody award-winning broadcast journalist and author. 15 She and Yale Center for Emotional Intelligence psychologist Dr. Marc Brackett created The Moodsters to help give children the tools to understand and talk about their emotions. 16 Daniels assembled a team of Emmy Award-winners and 6 Id. 7 Inside Out IMDB, http://www.imdb.com/title/tt2096673/ (last visited Nov. 6, 2017). 8 Id. 9 Disney Movies, supra note 3. 10 Id. 11 Id. 12 Id. 13 Disney Movies, supra note 3. 14 Id. 15 The Moodsters, http://themoodsters.com (last visited Nov. 6, 2017). 16 Id. Copyright Boston College, Bertie Magit 2
children s television veterans to develop The Moodsters into a bible comprised of an outline of the elements of a television series including characters and setting. 17 The Moodsters bible and television pilot, The Amoodsment Mixup, revolve around five anthropomorphous color-coded single-emotion characters Oola, Snorf, Zazz, Rizzi, and Scootz. 18 The Love character, Oola, is pink with a heart on the top of her head. 19 The Sadness character is Snorf who has droopy ears, tear-filled eyes and is represented by the color blue. 20 The Happy character, Zazz, is yellow and can almost always be seen smiling. 21 The Anger character, Rizzi, has furrowed eyebrows, balled up fists, is designated by the core color red and can produce lightning bolts from the top of her head when she becomes exceptionally mad. 22 Last is the Fear character, Scootz, who is green and constantly pulls his face into a fearful expression that says please don t hurt me. 23 Unlike typical copyright infringement lawsuits in this industry, Daniels is not suing over a stolen plot or storyline or even a specifically branded character like Mickey Mouse. 24 Daniels is suing over the essence of the characters; essentially claiming rights to the anthropomorphic fictional characters within her characters own heads. 25 There are clear similarities between The Moodsters characters and those in Inside Out, but are these likenesses enough for Daniels to win her copyright infringement 17 First Amended Complaint, supra note 5, at 10. 18 Id. at 12 16. 19 Id. at 16. 20 Id. at 13. 21 First Amended Complaint, supra note 5, at 12. 22 Id. at 14. 23 Id. at 15. 24 Leslie A. Kurtz, The Independent Legal Lives of Fictional Character, 1986 WIS. L. REV. 429, 447 (1986). 25 First Amended Complaint, supra note 5, at 2. Copyright Boston College, Bertie Magit 3
claims? 26 It is possible the United States District Court for the Central District of California would find the similarities between the characters to be too broad or derived from common culture, therefore, not stolen. 27 However, there is also a chance that the court can draw a clear connection between the characters in The Moodsters and Inside Out. 28 This article will discuss the allegations in Daniel s complaint and amended complaint, with a focus on the counts of copyright infringement. 29 Next, this article will analyze cases, law, and articles relevant to Daniels complaint. 30 Finally, this article will discuss Daniels pending lawsuit and its merits and give an opinion on the probable outcome if the case gets to court. 31 II. THE COMPLAINT AND FIRST AMENDED COMPLAINT On June 19, 2017, Denise Daniels filed a complaint in the United States District Court for the Central District of California for breach of implied-in-fact contract against The Walt Disney Company and a number of their subsidiaries. 32 Daniels claims that Disney/Pixar used Daniels concept and idea to create the movie Inside Out as well as in subsequent movie merchandise without compensating Daniels. 33 The complaint emphasizes that because Daniels allegedly disclosed her ideas regarding The Moodsters 26 First Amended Complaint, supra note 5, at 12 16; Disney Movies, supra note 1. 27 See Kurtz, supra note 9, at 438. 28 See id. at 438 39. 29 See infra notes 32 42 and accompanying text. 30 See infra notes 43 62 and accompanying text. 31 See infra notes 63 88. 32 Complaint at 14 15, Daniels, No. 2:17-cv-04527-PSG-SK (C.D. Cal. June 19, 2017). 33 Id. at 2 3. Copyright Boston College, Bertie Magit 4
to Disney/Pixar, there was an expectation of compensation if The Moodsters idea was used in any way. 34 On a number of occasions over the span of five years, from 2005 until 2009, Daniels and her team contacted Disney/Pixar with the goal to partner with the studio to produce The Moodsters on a national and international platform. 35 Members of Daniels team met with employees of The Walt Disney Company who allegedly shared information and materials about The Moodsters internally and to high ranking members of the company. 36 Daniels used this information in her complaint to assert Disney/Pixar had access to The Moodsters before 2010, when Director Pete Docter began working on Inside Out. 37 This timing is significant because the complaint contributes the success of Inside Out to the use of anthropomorphized emotions. 38 Daniels attorneys filed an amended complaint on September 20, 2017 adding a claim of unauthorized use of intellectual property to the suit. 39 The first amended complaint also includes additional counts for Copyright Infringement of ensemble of characters and Copyright Infringement of the Happy character, the Sadness character, the Anger character, and the Fear character. 40 Daniels complaint specifically references that each character is a single emotion, the anthropomorphization of the emotions, and the 34 Id. at 13 14. 35 Id. at 16. 36 First Amended Complaint, supra note 5, at 16 17. 37 First Amended Complaint, supra note 5, at 18; Complaint, supra note 29; Carolyn Giardina, Making of Inside Out : Which Emotions Didn t Make the Cut, The Hollywood Reporter (Dec. 21, 2015), http://www.hollywoodreporter.com/features/making-inside-emotions-didnt-make- 848249. 38 First Amended Complaint, supra note 5, at 18 19. 39 Id. at 3. 40 First Amended Complaint, supra note 5, at 36 37. Copyright Boston College, Bertie Magit 5
representation of the emotions by a unique core color. 41 The first amended complaint specifies The Moodsters Company is the exclusive owner to all copyrights in The Moodsters Bible and The Moodsters Pilot after registering the pilot episode on July 27, 2007. 42 Disney filed a motion to dismiss on November 18, 2017 and the hearing is scheduled for January 29, 2018. 43 III. COPYRIGHT LAW According to the Intellectual Property Clause of the U.S. Constitution, the purpose of copyright law is to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. 44 However, copyright does not offer protection for an original work of authorship extend[ing] to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 45 Even though copyright law does not protect ideas, it can protect a full script and its accompanying plot. 46 An important aspect of protecting creative work is collecting 41 Id. 42 Id. at 29. 43 Motion to Dismiss, Daniels, No. 2:17-cv-04527-PSG-SK (C.D. Cal. Nov. 18, 2017). 44 U.S. Const. art. I, 8, cl 8 45 17 U.S.C. 102(b) (2017). 46 Chad Gervich, PrimeTime: The Truth About Protecting Your Work, Script Mag, http://www.scriptmag.com/features/primetime-the-truth-about-protecting-your-work. Copyright Boston College, Bertie Magit 6
evidence. 47 The Writers Guild of America offers a service for creatives to submit screenplays, animation, books, lyrics and more to establish a dated record of the material. 48 Procuring a valid completion date for creative material is essential to creating legitimate evidence; although, this date may not be sufficient to prove that a creative work was stolen. 49 Unless two works are identical, copyright infringement of scripts, including the plot, characters, and other elements, can be difficult for a court to decide at first glance. 50 Copyright infringement of characters themselves also must be determined as separate from the copyright of the original work, categorizing the character as a protectable element rather than an idea. 51 To create the inference that a work has been copied from an original, a plaintiff may present evidence to the court showing (1) the defendant s access to the allegedly-infringing work and (2) a substantial similarity between the two works at issue. 52 In 2004, in Stromback v. New Line Cinema, the United States Court of Appeals for the Sixth Circuit defined accessibility as the defendant having a reasonable opportunity to view the work or hear about the work therefore allowing the defendant the possibility of copying plaintiff s work. 53 Courts may use evidence of access to prove duplication if there are reasonable similarities between the works. 54 However, it is 47 Id. 48 Registration Details, WGA West Registry, https://www.wgawregistry.org/regdetails.html. 49 Gervich, supra note 42. 50 Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004). 51 Joshua Saval, Comment, Copyrights, Trademarks, and Terminations: How Limiting Comic Book Characters in the Film Industry Reflects on Future Intellectual Property Issues for Character Law, 9 FIU L. REV. 405, 413 (2014). 52 Stromback, 384 F.3d at 293. 53 Id. 54 Id. at 299. Copyright Boston College, Bertie Magit 7
possible for two works to possess such a clear resemblance that courts may infer that there was copying without having to show access. 55 Alternatively, when two works lack substantial similarities, the amount of access becomes irrelevant. 56 According to the United States Court of Appeals for the Ninth Circuit in 1994 in Kouf v. Walt Disney Pictures, courts apply a two-part, extrinsic and intrinsic, test to compare the similarities of ideas and expression in two works. 57 The first test, the extrinsic test, focuses on objective standards comparing similarities between elements such as plot, dialogue, characters and sequence of events. 58 The second test, the intrinsic test, is subjective and challenges whether the ordinary, reasonable audience would recognize the defendant s work [as] a dramatization or picturization of the plaintiff s work. 59 When comparing an alleged copy with a character within a copyrighted work, a court must contemplate and compare the totality of the characters attributes at traits. 60 Unlike literary characters, graphic characters in visual mediums such as television or film build a more solid and finite conceptualization of the character leaving the reader or observer of the work less space to interpret the character on their own. 61 In addition to the visual rendering of the character, which is the strongest contributory factor in noticing similarities between two characters, comparisons can be made about what the character thinks, feels, and does and the descriptions conveyed by the author. 62 However, courts 55 Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir. 1946). 56 Stromback, 384 F.3d at 299. 57 Kouf v. Walt Disney Pictures & TV, 16 F.3d 1042, 1045 (9th Cir. 1994). 58 Id. 59 Id. at 1045 (citing Litchfield v. Spielberg, 736 F.2d 1352, 1357 (9th Cir. 1984)). 60 Warner Bros. v. ABC, 720 F.2d 231, 241 (2d Cir. 1983). 61 See id. at 240 41. 62 Id. at 241. Copyright Boston College, Bertie Magit 8
look at the specificity of the similarities; the copyright suit will fail if the likenesses of multiple characters are too general. 63 IV. DISCUSSION Daniels amended complaint goes into great detail about the methods of access the Walt Disney Company had to The Moodsters. 64 Daniels and her team first pitched the idea of The Moodsters to Disney/Pixar in 2005, and they continued to contact the company annually from 2006 to 2009. 65 In those interactions, Daniels and her team had contact with various individuals who directly received information about The Moodsters. 66 Daniels and her team communicated with individuals who then allegedly shared the materials with the President of Disney Channels Worldwide, Inside Out director Docter and others. 67 While there are clear crossover elements between the characters in The Moodsters and Inside Out, a court will consider all of the characters traits. 68 Daniels complaint focuses on both the group of characters as a whole and on four out of the five specific characters. 69 When referencing the similarities of the ensembles, Daniels complaint 63 Stromback, 384 F.3d at 293, 298 (concluding there was no copyright infringement when goals and life events of the characters in both the original story and alleged copy were noticeably similar but the characters themselves were noticeably different). 64 First Amended Complaint, supra note 5, at 29. 65 Id. at 16 18, 29. 66 Id. at 16 18. 67 Id. at 16 19. 68 Kouf, 16 F.3d at 1045; Warner Bros., 720 F.2d at 241. 69 First Amended Complaint, supra note 5, at 19 Copyright Boston College, Bertie Magit 9
points towards the anthropomorphous nature of the emotions. 70 Each character represents a single emotion, and each character is identified by a specific color. 71 The complaint distinguished each of the similar elements from common culture and Disney s repertoire. 72 While it may not be common, Disney could argue that Daniels attribution of a single color to represent an emotion is not new. 73 Additionally, Disney/Pixar s selection of Joy, Sadness, Fear, and Anger may or may not have been chosen with The Moodsters in mind. 74 It is possible that Disney/Pixar selected their highlighted emotions independently of The Moodsters. 75 After all, the six basic emotions as understood and recognized in most cultures are happiness, sadness, surprise, anger, fear and disgust. 76 Finally, Disney/Pixar frequently anthropomorphizes characters in their animated productions. 77 Disney/Pixar s choice to make a story about emotions may throw the discussion back to the broad concept of the story as an idea, which copyright law does not protect. 78 Similarly, the specific characterizations of the Happy character, the Sadness character, the Anger character, and the Fear character may coincidentally overlap. 79 It may be hard for a court to find that the traits of the characters in Inside Out specifically derived from The Moodsters, again referring to the common culture. 80 For example, using the color blue to represent the Sadness character is not surprising and neither is the 70 Id. at 36 37. 71 Id. 72 Id. at 22 23. 73 Color Meaning, Color Wheel Pro - See Color Theory in Action, http://www.color-wheelpro.com/color-meaning.html. 74 See Giardina, supra note 38. 75 See id. 76 Whitbourne, supra note 1. 77 Disney Movies, supra note 3. 78 Gervich, supra note 42. 79 Giardina, supra note 38; Whitbourne, supra note 1. 80 Kurtz, supra note 9, at 438. Copyright Boston College, Bertie Magit 10
Sadness character s natural tendency to cry. 81 While a court would look to the totality of the character s attributes, Disney could also point to the lack of similarities in the visual appearances of the characters, which stops at their designated colors. 82 V. CONCLUSION Copyright laws exist to protect authors and inventors the exclusive rights to their respective works for an exclusive time to promote the progress of science and useful arts. 83 In the entertainment industry, there have been many copyright infringement lawsuits over the years alleging stolen ideas, storylines and characters. 84 The success of those lawsuits depend on the ability of the plaintiff to show strong and clear similarities between the original and the alleged copy. 85 There are notable similarities between Daniels The Moodsters and the five emotion characters in Inside Out. 86 Throughout five years of correspondence and information sharing, it is apparent that Disney/Pixar had the access to The Moodsters copyrighted characters. 87 What is not apparent is whether or not the fact that both Inside Out and The Moodsters characters are anthropomorphic, colorcoded animated characters representing a single emotion is enough to cross the line from similar to a replication. 88 It is likely that the United States District Court for the Central District of California is likely to decide against Daniels and in favor of Disney. 89 81 See First Amended Complaint, supra note 5, at 13; Color Meaning, supra note 69; Disney Movies, supra note 3. 82 See Color Meaning, supra note 69; Disney Movies, supra note 3. 83 U.S. Const. art. I, 8, cl 8. 84 See Saval, supra note 48; Kurtz, supra, note 24. 85 See Stromback, 384 F.3d at 293. 86 First Amended Complaint, supra note 5, at 11 16; Disney Movies, supra note 3. 87 First Amended Complaint, supra note 5, at 2, 16 18. 88 Id. at 2. 89 See Kouf, 16 F.3d at 1045; Warner Bros., 720 F.2d at 241. Copyright Boston College, Bertie Magit 11