MANHATTAN (CN) – Fighting to revive copyright claims over “The Light Between Oceans,” a lawyer for a screenwriter gave the Second Circuit his best Humphrey Bogart impression at oral arguments Thursday.
“You could say the movie ‘Casablanca’ is about a cynical American ex-patriot who opened a saloon in Morocco right at the outset of World War 2,” said David Brooks, an attorney with the firm Scarola Malone & Zubatov.
“But then if you start adding in, oh, he had an African-American piano player who played a certain song better than anyone else, but he had been told by the boss not to play it anymore because it brought back bad memories of a failed romance, and then of all the gin joints in the world she walks in with her husband.”
“At a certain point,” Brooks added, “you need to draw the distinction between the idea and the expression of the idea.”
Brooks allowed that abstract ideas are not protectable, but insisted that the 18 similarities between “The Light Between Oceans” and his client’s screenplay are more concrete.
Eight years before Simon & Schuster published “The Light Between Oceans,” Brooks’ client, Michael Nobile of New Jersey, obtained a copyright in 2004 for a screenplay he alternately titled “The Rootcutter” and “A Tale of Two Humans.”
Nobile’s screenplay involves a couple living off the coast of Ireland who find a pregnant woman swept ashore by a storm.
In a 2017 complaint, Nobile alleged similarities between his work and the best-selling novel by M.L. Stedmed, a pen name for London-based author Margot Louise Watts, which is set on a lighthouse island in Australia where a childless couple find a rowboat containing a newborn baby and a dead man.
Though a federal judge dismissed the complaint last year — finding “no substantial similarity in plot, sequence, or pace” between the two works — attorney Brooks insisted at Second Circuit oral arguments this morning that Nobile’s screenplay was the “jumping-off point” for Watts’ book.
“Without it,” the lawyer added, “there would be no novel.”
Elizabeth McNamara, an attorney for Simon & Schuster with the firm Davis Wright Tremaine, denied meanwhile that copyright law can be invoked to protect “jumping-off points.”
McNamara noted major differences in the stories, including the endings. In Watts’ novel, the baby is 4 years old at the end when she is returned to her biological mother.
In Nobile’s screenplay, the baby dies at 4 days old when it is blown from her father’s arms while he is climbing a mountain.
McNamara also pointed to a difference in theme, a point that U.S. Circuit Judge Robert Sack made as well.
The judge called Nobile’s screenplay a parable about a pious couple, whereas Watts’ novel is regarded as a vehicle to address the tension between a lost baby’s biological mother and her adoptive mother.
“This is what expression is all about,” McNamara told the court, adding that Nobile is “trying to control and own ideas, and not the expression of ideas.”
Nobile and Watts also took different tacks in describing how the couple finds the baby. In Nobile’s screenplay, the protagonist uses his teeth to sever the baby’s umbilical cord from its dying mother, but the discovery scene in “The Light Between Oceans” is markedly peaceful.
Brooks told the Second Circuit to look at the differences.
“They took enough,” Brooks argued. “Of course they added on other things.”
Before its adaptation into a 2016 movie starring Michael Fassbender, “The Light Between Oceans” sold more than 23 million copies.
Nobile alleges that Watts, a former in-house intellectual-property lawyer for liquor conglomerate Diageo, may have come across his unproduced screenplay while taking a creative-writing vacation in Greece with a professional script reader.