Movie-A-Day: Disturbia – Or, when does homage become copyright theft?

Starring: Shia LaBeouf, Sarah Roemer, Carrie-Anne Moss, David Morse Director: D.J. Caruso Year Of Release: 2007 Plot: 17-year-old Kale Brecht is placed under house arrest after punching one of his teachers. When his mother also takes most of his sources of entertainment (such as his games console) away, he decides to use his free time spying on his neighbours. While watching, he sees what he thinks is the guy next door, Mr Turner, killing someone. Kale and his friends, Ronnie and Ashley, get more and more suspicious, which soon gets Mr. Turner’s attention.

It’s an interesting question as to when homage tips over into outright copyright theft, and one Disturbia had to face when it was sued by the person who own the rights to the 1942 Cornell Woolrich’s story, It Had To Be Murder.

The short story was the basis for Hitchcock’s classic 1954 film Rear Window, a movie many people commented seemed to be the main source of inspiration for Disturbia. It would have been difficult for Dreamworks/Paramount to claim there are no similarities, because the Disturbia script had been around since the late 90s, but plans to make the movie back then were put on hold when Christopher Reeve announced plans for a TV movie remake of Rear Window, and it was deemed that the two projects were too similar. However interest in the screenplay remained and in the mid-2000s Dreamworks optioned it and decided to film it.

The studio’s contention was that while it might share similarities with Rear Window, it was its own entity and any resemblances were homage rather than anything that broke copyright law. However they weren’t helped in this by a lot of the reviews, which were quoted in the lawsuit, where people made reference to Rear Window, and even the fact it seemed that by replacing a middle-aged man with teenagers, the makers of Disturbia were trying to find a way not to pay royalties to Cornell Woolrich’s estate.

So when does homage become copyright theft? Well, as always with copyright law, it’s a complicated question to answer. The term homage originally comes from feudal times, and refers to when people officially made an acknowledgement to a lord or king, that they were their subject and therefore subservient. Since those times it has come to mean anything that pays tribute to something else, acknowledging it as the first, best, progenitor or otherwise worth paying respects to.

As with parody, the right to refer to other copyrighted works is protected under the fair use provisions of copyright law. While there are no hard and fast rule as to when homage tips into copyright theft, the general imperative is that it’s illegal if a reasonable person comparing the two works would assume one is substantially based on the other, with this needing to be backed up by specific instances of where one work has ripped off the other.

As far as I’m aware, no ruling has yet come through on the case, which could be because it’s yet to come to court, but may be because Dreamworks did a deal with the people who own Woolrich’s story, the terms of which have been kept private.

Interestingly, It Had To Be Murder was at the centre of another copyright case in 1990, where the US Supreme Court found that after the death of the original copyright holder of a work of art, a later holder of the rights isn’t necessarily bound to the terms of any contract the earlier rights holder made to create derivative works, once the copyright comes up for renewal. The importance of this is that while Woolrich had done a deal to allow Hitchcock to make Rear Window, which included renewing the copyright so Universal (and Jimmy Stewart, who actually owned the screen rights to the story) could continue ensuring nobody else could make a movie based on that story, the court found that this deal couldn’t be held to continue past Woorich’s death, once the rights came up for renewal, as it placed onerous burdens on subsequent rights holders.

This may sounds rather dull and tedious, but it has had potentially far reaching repercussions in Hollywood. In the case of Rear Window, after the ruling, Universal wouldn’t have even been allowed to release the movie on DVD, or let it to be shown on TV, if a new deal wasn’t worked out with the people who owned Woolrich’s story. And it wasn’t just Rear Window, as studios had to search through their archives for other titles that were potentially infringing this new interpretation of copyright law, because while the original contracts may have seemed to cover all eventualities, this ruling changed that.

It really would be better if they could come up with some simpler rules for copyright, but as some uses of copyright works need to be protected, such as right to parody or satirise something, and there are inevitably going to be works that are somewhat similar to one another, without actually copying them, there’s probably no way to make it a simple affair. It’s where art and free expression meets contract law, and that’s always going to be immensely complicated.

TIM ISAAC

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