One of Several “Avatar” Lawsuits Bites the Dust
by Jerry Glover
April 25, 2012
There are at least four lawsuits against James Cameron, director of the motion picture “Avatar,” and the studio behind the film. Most of the lawsuits have been filed by obscure plaintiffs who claim Cameron or someone on the “Avatar” team stole their novels or some other writing they had created and used them as the basis for the film. Most of these lawsuits included at least one count of copyright infringement.
One lawsuit was decided on April 5, 2012 in a short, written opinion by a judge in the federal trial court in Florida. Clay v. Cameron, No. 10-22203 (S.D. Fla. 2012). In this case, the plaintiff claimed to have written a book entitled “Zollocco: A Story of Another University” in the mid-1980’s. She claimed the book was in “wide circulation in the entertainment industry.” Slip Op. at 1-2. Plaintiff also claimed that Cameron, in the mid-1990’s, stole plot situations, character descriptions and other “unique elements” from her book and used them in “Avatar.” Id. at 2.
Without getting into the issue of whether the two works were substantially similar as required by copyright law, the court dismissed the plaintiff’s case for failure to sufficiently allege that Cameron had access to her work. In order for a plaintiff to sue for copyright infringement, he/she must allege that he/she is the owner of a valid copyright and that the defendant copied the work. Id. at 4. To establishing copying, the plaintiff must show that the defendant had access to the plaintiff’s copyrighted material.
In this case, plaintiff alleged that her book was on various websites and that her literary agent and a principal in one of the websites had “circulated the work within the motion picture industry.” Id. at 5. The court held that a plaintiff must “allege a ‘nexus’ between the circulation of her work and [defendant].” Id. Plaintiff may have established that here work was in general circulation but she did not allege sufficiently that there was a nexus between her work and Cameron.
The plaintiff argued that access could be inferred because her work was available on the Internet. Id. The court rejected this theory citing several decisions from other federal trial courts that had rejected that same theory. Id. at 6. Plaintiff relied on one case to support this point, Green Bullion Financial Services LLC v. Money4Gold Holdings, Inc., 639 F. Supp. 2d 1356 (S.D. Fla. 2009). But the Florida court noted that in Green Bullion the defendant was a web-based competitor of the plaintiff. In the Avatar case, the plaintiff did not allege that Cameron conducted business via the Internet or would have had reason to access the plaintiff’s work on a web site. Id.
The court also rejected plaintiff’s argument that access could be inferred because her book was in general circulation within the entertainment industry. The court noted that an “inference of access based on a third party’s possession of the plaintiff’s work [her agent and the principal of a website on which the book could be found] requires more than a mere allegation that someone known to the defendant possessed the work in question.” Id. quoting Herzog v. Castle Rock Entertainment, 193 F.3d 1241, 1252 (11th Cir. 1999). Plaintiff had not alleged that Cameron or any other defendant in this case knew or did business which her agent or the website.
Since plaintiff failed to present sufficient facts to support a claim of access, the court dismissed her complaint.
We predict that other “Avatar” lawsuits will reach a similar result although there is one suit involving a former Cameron staff member who has filed a copyright infringement suit and who has alleged “better facts” on the access issue. We’ll let you know.