Question: What do these things have in common?
- a snowman loses his carrot nose, and it slides out to the middle of a frozen pond;
- the snowman is on one side of the pond and an animal who covets the nose is on the other;
- the characters engage in a contest to get to the nose first and the animal ends up with the nose; and
- in the end, the animal returns the nose to the snowman.
If you were to ask filmmaker Kelly Wilson, she would likely tell you that the above sequence of events play out in her short film “The Snowman”, and in Disney’s blockbuster film “Frozen”. Wilson thinks the similarities are so significant that she has commenced proceedings in the US District Court claiming Disney has infringed her copyright in “The Snowman”.
Disney, of course, deny the whole thing.
Wilson released “The Snowman” in 2010, and entered the film into several competitions (including one which was attended by Pixar employees). She also submitted the film to Disney as part of a number of unsuccessful job applications made between 2009 and 2012. During the proceedings, it came to light that “The Snowman”’s co-creator is Facebook friends with one of the animators who worked on “Frozen”, and a suspicious YouTube search related to “The Snowman” was made at around the time the “Frozen” trailer was being produced. It’s hard to say whether any of this means Disney has directly copied Wilson’s work – after all, isn’t social media an open door to creativity?
Initially, Wilson alleged breach of her copyright in the plot, themes, events and characters in “The Snowman”, including the main character himself, who she claimed was the inspiration behind Disney’s lovable snowman character Olaf. She sought damages, being the recovery of the worldwide profits Disney made from the alleged exploitation in “Frozen” (which, for the record, is over $1 billion). ‘Sno wonder she was keen to make her claim (sorry).
Disney have attempted to have the case dismissed, and have applied for summary judgement, both without success. However, a US judge has limited the scope of Wilson’s claim to whether the trailer itself infringed “The Snowman”. This is significant – if Wilson’s claim is successful, the amount of damages she will be able to recover will be limited to those that she can demonstrate resulted from the trailer and not the full feature film. At least one article has suggested that this could include profits from “Frozen” disc sales, which include the trailer, but until a decision is handed down it is unclear what position the US courts will take.
A jury trial has been scheduled for October, but commentators expect the parties will make like snowflakes and settle before then.
If Wilson were to bring her case in Australia, her best bet would probably be to argue that the infringement has occurred because the trailer substantially reproduces a substantial part of the ‘dramatic work’ embodied in her film “The Snowman”. This would require a court to first consider whether there has been any reproduction of Ms Wilson’s dramatic work at all (bearing in mind that there is no copyright in ideas and the independent creation of the same work will not infringe copyright). If some element of copying is established, the court would then compare the two works side by side and determine whether there a “substantial part” of Ms Wilson’s dramatic work has been copied. We’ll let you be the judge –what do you think?
You can view “The Snowman” here.
Interestingly, if this claim was threatened by Wilson in Australia, Disney could seek to bring a claim for unjustified threats. If an Australian court were to find Wilson’s case was unjustified, Disney would then have the ability to claim damages for any losses they suffered as a result of her threats to bring the action against them (see our article on the case of Bell v Steele for a recent example of this). If things weren’t icy before that, they certainly would be afterwards…
We’ll be watching this case closely.
Article by Katie Dillon and Sun Hoon.