On Monday, an Arizona man filed a lawsuit against Joss Whedon, Drew Goddard, Lionsgate Entertainment, and Mutant Enemy (Whedon’s production company) claiming that the movie The Cabin in the Woods infringes on his copyright. Notably, the suit was filed on April 13, 2015, three years to the day after the movie’s theatrical release, which puts it just under the wire with respect to the statute of limitations on civil claims of copyright infringement.
At the core of the suit is a book written by Peter Joseph Gallagher titled The Little White Trip: A Night in the Pines. (Although he omits his middle name in the suit, I use the plaintiff’s middle name here not to imply that he is a serial killer, but because that’s the name that he used on the book itself – and also to distinguish him from Peter Gallagher the actor.) The suit (PDF) alleges that there are twenty-five “scene similarities” between Gallagher’s book and Cabin, which amount to infringement upon Gallagher’s copyright.
Having published academically on Cabin in the Woods, and specifically on antecedents to that movie both in the Whedonverse and elsewhere, this story naturally piques my curiosity. Also, though I am not a lawyer, I have long been interested in copyright law – in particular, it’s overreach – both as a writer and as a volunteer ebook producer for Project Gutenberg. Given these intersections of my various interests, this is too good of a story not to comment upon.
According to the background allegations in the suit, Gallagher first had the idea for his book in 2004, and over the next several years wrote the story, ultimately registering it with the Writer’s Guild of America in 2007. At the time, he was actively selling 2,500 copies that he had printed on his own dime, with most of the sales being made in various parts of California near Los Angeles, including Santa Monica and Venice. He sold 300 copies to the Johnnie Cochran Middle School, located about 10 miles from Santa Monica, with additional copies being sold through online outlets like Amazon. The claim notes that there were various references to the book online, such as on Goodreads and random blogs. (As a digital marketer myself, some of the mentions I’ve seen seem a bit sketchy – like this one listed as a “poem” on AllPoetry.com – but 2007 was a wacky time in SEO, and a lot of people were doing things that have since become frowned upon.) All of these things seem at least somewhat verifiable, and likely are true.
One potentially verifiable claim the suit makes is that the Long Beach Gazette published an article on Gallagher on April 2, 2007. In that article, Gallagher allegedly describes the book as “a different way of telling a story you think you’ve heard before,” which the complaint claims is similar to the tagline used to promote the movie: “You think you know the story.” Given the specificity of the article date, one would think it is easily confirmed. However, in searching the Gazette’s archives, I could not find any reference to an article profiling Gallagher. That’s not to say it doesn’t exist, but at this point I can’t verify the claim.
The action also makes some tenuous claims. Gallagher says that during the time when he was selling his book on beaches and boardwalks, he “was contacted by multiple credited entertainment industry producers who expressed interest in the Book.” That he does not list any of the names makes this claim seem suspect at best. Sure, it’s possible he does have some correspondence from one or more of these alleged contacts, but if so why would he not state who they are? More significantly, the claim notes that Whedon and Lionsgate “currently reside and operate out of Santa Monica, California, a short distance from where the Book was sold.” Even so, there’s no reason to believe that Whedon or anybody at Lionsgate ever held the book, let alone read it. I imagine the Los Angeles area has tons of people trying to sell all sorts of crap, but simple proximity does not imply any sort of relationship.
Those background claims aside, let’s dig into the specific claims about the similarities in the story.
At the heart of the complaint is the supposed similarities between the book and Cabin. “Both works display a self-referential awareness of classic horror movie tropes,” the claim asserts, “and insert third-party puppeteers to manipulate the characters for the fulfillment of narrative requirements and the enjoyment of others.” The claim goes on to outline five tropic similarities between the two works, and twenty-five “scene similarities.” I will address each of these, first by stating the complaint and then by providing my analysis.
Like the Book, Cabin in the Woods tells the story of five friends (three guys and two girls) between the ages of 17 and 22 who take a take a trip to a remote cabin in the woods. The cabin’s previous inhabitants were murdered by the father of the family, who returns to terrorize the group of friends. In the end, it is revealed that the friends are being filmed and manipulated by persons behind the scenes, thus becoming inadvertent characters in a real-life horror show for the enjoyment of others.
At first blush this seems pretty convincing—until you realize that this is not a plot. It’s a situation. It’s a typical writer’s group scenario, with no real details and very little information to go on. In fact, it’s a classic example of the Forer effect, a technique used by astrologists and psychics to make vague, general observations seem specific.
One reason why the vagueness is needed to make Gallagher’s case is that the book never mentions the ages of the five protagonists. At the beginning they graduate as part of their high school’s class of 2003, which implies they are probably 17 or 18, assuming none of them graduated especially early or late. Contrast that with the movie, where the characters are all at least at the end of their second year of college – which implies 20 at the youngest, again assuming no unusually early or late high school graduations (or delays). To lump all the characters into a monolithic “17-22” age range is certainly misleading.
Another vagueness is the murdering father. Here, it’s stated that in both stories the father returns to kill the friends. However, in Cabin it’s not only the father who returns, but the entire Buckner family, who are all zombies. This will be explored further below in the scene similarities.
Finally, the vague idea that people are being killed for the enjoyment of others is hardly the same in both scenarios. While the manipulators of the Facility in Cabin do sometimes take delight in their work — such as through their betting or when all the men are watching Jules take her top off — the “enjoyment” is by angry “gods” who demand sacrifices, and in the end everybody dies. In contrast, Gallagher’s twist is that the recent graduates are unwittingly participating in a reality show…in which nobody actually dies.
The setting of each work takes place in a remote cabin in the woods, where the prior inhabitants of the cabin were murdered.
I wrote a 16-page paper on cabin scenarios. Go read that, and then let me know if you think that Whedon, Goddard and Lionsgate were copying Gallagher.
The similarities between the characters in both works are striking. Both works have five lead characters between the ages of 17 and 22 (three males and two females). The group of friends consists of two couples and one male. The female leads in both works include a bubbly blonde with blue eyes, and a sweet dark haired female who recently ended a relationship. Even the names of the lead characters are similar. The name of the lead blonde in the Book is Julie and in the Film it is Jules. Similarly the name of the lead brunette in the Book is Dura and in the Film it is “Dana”. Even the name of the remote cabin the characters travel too is similar. The cabin in the book is referred to as the “Brinkley Cabin” and in the film it is the “Buckner Cabin.” In both works the female brunette lead (Dura/Dana) has a romantic relationship with the more sensitive, shy, and mature male (Matt/Holden) which culminates in a love scene in front of the fireplace. Similarly, in both works the female blonde lead (Julie/Jules) has a relationship with the strong, charismatic male character who drinks regularly and looks like a movie star (Ian/Curt). The appearance and behavior of the third male lead (Sam/Marty) is similar in both works. Both have quirky personalities, have messy dirty blonde hair, wear a grey shirt and jeans throughout the film, smoke marijuana, and enjoy gazing up at the stars.
I’ve already noted that the age range is misleading. The groups are distinctly in the 17-18 age range in the book, while Cabin‘s main characters are in their twenties.
The main thing to note, however, is that this characterization relies on two factors: name and physical features. However, there is much more to characters than simply their name and physical features (at least, for good characters). It’s a bit tedious, but I will go through each pairing of characters offered above and point out where, once more, a bit more specificity shows that these characters are not actually alike.
First, let’s get this clear: Both characters are named Julie. According to the Cabin screenplay, as published in the Official Visual Companion, Jules is actually “Julie ‘Jules’ Louden.” That said, I’ll refer to them in the way that the lawsuit does (Julie for the book; Jules for the movie) to distinguish them in this discussion.
In the book, Julie is described as follows:
She wore a length of cascading blonde hair, had blue eyes, and traveled with a very strange walk; it was more of a hip-heavy waddle, but not without class. Sometimes she really exaggerated the walk. She would place one hand on her hip and extend the other above her waist. Her dangling hand, bent from the wrist, just kind of flopped around as she walked. Her face usually held an inquisitive look although I’d be surprised if there was ever much going on upstairs. (30)
In contrast, Jules is described in the screenplay as being “bubbly, sexy and as of ten minutes ago, blonde” (Visual Companion 51). This last bit is an important point because it undercuts the physical comparison Gallagher makes: Jules is not blonde. She is artificially blonde, something that her friend Dana notices almost immediately, as do both her boyfriend Curt and her friend Marty when they each see her later in the same scene. More importantly, Jules’s non-blonde-ness becomes a plot device when it’s revealed that the Facility’s engineers had drugged her hair dye to make her act less inhibited (which is part of the reason why it’s made such a big deal of at the beginning of the movie).
This is a critical point because the surface similarities that Julie and Jules share actually belie Gallagher’s claim. Matt (the first-person narrator of the book) says he would be “surprised if there was ever much going on upstairs” in Julie’s brain. However, in Cabin Jules is known to be both smarter and less sexually promiscuous than she acts during their trip, due explicitly to the effects of her spiked hair dye (cf. “Charybdis Tested Well with Teens” by Erin Giannini, ¶16). In other words, whereas Julie fits the typical dumb-blonde trope, Jules intentionally and explicitly does not.
In the book, Dura:
…had a soft coffee complexion, hazel eyes, long brown hair, and the heart-shaped lips of a sexy cartoon. She was the star volleyball champ up until junior year and still bore the athletic look. She dressed in warm-ups and tank tops, things like that. Not the most fashionable girl, more like a ‘one of the guys’ type, nevertheless, she always had my attention.” (24)
The Cabin script describes Dana as:
…a thoughtful, attractive college sophomore. Her room is like her: restrained and well ordered, but with funky touches of color and whimsy. (Visual Companion 50)
That’s the only physical description the script provides so we’ll have to turn to a picture of her.
Notice anything different about Dana compared with Dura? For example: the lack of brown hair. Also, Dana is not dressed in sportswear, she has neither heart-shaped lips nor a coffee complexion, and her eyes are blue just like the actress who portrayed her (Kristin Connolly). In fact, not only does the Gallagher lawsuit get the hair wrong (again), but in fact nothing in Dura’s description describes Dana, apart from them both being female.
There’s no attempt to compare the looks of these two characters. The only comparison made is that they are both “sensitive, shy, and mature.” Beyond these vague characteristics (Matt actually is described in the book as being insensitive, at least while drunk ), Matt and Holden share another similarity. Each guy enjoys “a love scene in front of the fireplace” with his respective female companion (Dura/Dana). In the book, the love-scene is a three-page, full-on sexual romp, with the implication that it lasted much longer in real time (159-161); however, in Cabin the love scene is limited to two brief kisses before the would-be couple is interrupted by Curt and Marty running into the house. Even so, the “fireplace of romance” is a pretty common trope used as an setting for sexual encounters between two interested but previously disengaged parties. This setup is hardly unique to either of these stories.
The respective love interests of Julie and Jules are supposedly “strong, charismatic” characters who drink regularly and look like movie stars. In particular, Ian:
…was just over six foot, dressed in vintage rags that cost way too much, and had a kind of movie star-looking face: overgrown lips, a very thin and straight nose, and a shag of dark brown hair, that most of the time concealed a set of sleepy bright green eyes. (11)
Assuming Curt is the same height as the actor who plays him (Chris Hemsworth), he would be 6’3”, noticeably taller than “just over six foot.” While Curt’s nose might be straight enough, it’s actually kind of wide, and his lips are decidedly thin as opposed to being “overgrown.” (I’m not even sure what “overgrown lips” would look like.) Curt also has short, buzzed hair and blue eyes. Even if all these things add up to looking like a movie star – and of course, Hemsworth is a movie star – again it’s clear that almost every detail in the physical description of these characters is different.
The last comparison follows a similar pattern. Foremost, Sam:
…carried a long skinny appearance, pale dangling arms covered in thin moss-like hair, excited brown eyes, dirty blond hair trimmed to an acceptable length, and a few old pock marks positioned about his cheeks, reminiscent of a violent puberty. (8-9)
Since the lawsuit mentions their common attire as well, I’ll note that Sam is described as wearing “an awkwardly cut pair of blue jeans topped with a plain grey tee shirt with a fashionable front pocket” (83).
Marty certainly fits the “long skinny appearance,” and he does wear jeans and a gray T-shirt throughout the movie (though it’s stained rather red by the end). But again, details. Marty’s T-shirt does not have a pocket – fancy or otherwise – and he wears other layers both above (a cardigan) and below (a long-sleeve shirt) the gray T-shirt. Furthermore, Sam wears at least one other outfit in the book, a navy blue graduation gown with no shirt underneath it (9, 25). Considering that the book’s story takes place over several days, it’s likely he wears other outfits as well, though they are never described. In addition, while Sam’s hair is “dirty blond…trimmed to an acceptable length,” Marty’s is medium brown and unkempt. (Why is it so hard to get hair color right?) Finally, Marty has no visible pockmarks like Sam does.
From a personality perspective, Sam and Marty share little beyond their love of marijuana. In the book, Sam is “locked into some kind of never-ending struggle with awkward karma” and has “countless bumps, scrapes, and downright embarrassing situations he battled daily” (9). Marty, although fulfilling the role of the Fool, is not particularly foolish or awkward (though in a few cases others feel awkward because of things he says or does). In fact, he is quite lucky, insightful, and even manages to fight off the zombie Buckners on multiple occasions. Also, while Sam is described as a fifth wheel (102), Marty seems rather blissfully single, even despite describing his erstwhile relationship with Jules.
It’s hard to see how the claim can hold up on any basis of character. Not only do all of the alleged physical descriptions disintegrate under the dullest of lights, but the personalities of the characters don’t even fit very well. Yes, the Julie/Jules and Dura/Dana name thing is odd, but how does it fit in with the fact that the Sam/Marty, Ian/Curt and Matt/Holden pairings don’t even come close? If the names aren’t coincidental, then what sense does it make to keep only two names that are similar to the book? Only someone looking at this from the most superficial perspective possible could see these characters as being similar.
The lawsuit describes the mood and pace of the works similarly. Here is the description of the mood:
Both works have a similar mood in that they are horror films that begin with the enthusiasm of a group of friends going on a trip, followed by the excitement of a night of drinking and romance at a cabin in the woods. The mood then shifts to a series of frightening murders which culminates in a surprise reveal that the lead characters are being manipulated for the enjoyment of third parties.
And the pace:
The pace of each work is extremely similar. Both are horror films, punctuated with a series of deaths, followed by a surprise reveal that the lead characters are being manipulated for the enjoyment of third parties.
I would again direct people to read my Slayage paper to see the history of cabin scenarios. This setup is the same for movies going as far back as the 1950s, and I make a case that there are stories (fairy tales, folklore, etc.) with similar tropes even before that. The only alleged twist here is that “the lead characters are being manipulated for the enjoyment of third parties.”
Speaking strictly diegetically, the purpose behind the manipulating parties of each story could not be more different. In the book, it’s revealed that the people manipulating Matt and his friends are moviemakers. They “kill” his friends one by one, until only he and Julie are left alive. At that point, the subterfuge is lifted, and a man reveals that they have been making the first “reality movie.” (The culmination is not unlike the climax of The Game, starring Michael Douglas and Sean Penn.) In fact, nobody is killed, and everyone lives at the end, ultimately receiving nice, fat checks, complete with an 80s-style “where are they now” postscript.
In Cabin, there is a sense that the people manipulating the five friends are doing so for entertainment purposes, but there’s also a big threat element to it. The gods to whom the friends are being sacrificed will kill everyone if the sacrifices aren’t done properly. And in fact, that’s exactly what happens. Nobody lives; everybody dies. Not just the five, but the manipulators as well. Yes, there is a metatextual level on which the story can be read, where the “gods” are the audience of horror films passing judgment on the film, but even that metatextual level is completely missing from Gallagher’s story.
If one looks hard enough, either inside or beyond the horror genre, I suspect other examples (like The Game) could be found where the participants don’t realize they are being manipulated in a similar way. The Truman Show and Dark City both come to mind. Also, several movies based on Philip K. Dick stories, like Total Recall, A Scanner Darkly and The Adjustment Bureau could probably fall into this category. A more in-depth search would likely turn up more.
Not only are all of these elements present in prior movies, they’re also present in prior Whedon works. Specifically, Buffy the Vampire Slayer Season 3, Episode 5 (“Homecoming”) tells the story of how Buffy and Cordelia wind up being unwilling contestants in a “reality” game called “Slayerfest ’98” in which various demons and other bad guys hunt them. In this case, it was only two people who were involved (although three others – Xander, Willow and Oz – were meant to travel with them in the limo that gets hijacked), and their destination was the school rather than a remote woods, but the situation actually plays out rather closely to the vague description provided above. Considering that the episode aired at least six years before Gallagher claims to have started working on his novel, it seems that Whedon has the upper hand here.
Now the specifics. A lot of these I have covered already, and will refer back to the arguments made above where applicable. For the similarities themselves, refer to the lawsuit.
1. Again, read my paper on cabin scenarios. Simply going to a cabin in the woods is hardly a unique idea. As for the specific implementations, the book describes a ski trip to a cabin in a mountain pine forest, while the movie shows a trip to a warm-weather cabin in a deciduous forest near a lake.
2. The differences in physical appearance between the female leads are described above.
3. How does one usually get from one place to another? They take a vehicle. This happens in nearly every movie.
4. Like the character name similarities, it’s unclear whether this is coincidence or borrowing. I’d like to think that if Whedon and Goddard were stealing an idea, they’d be smart enough to change the name more than this.
5. The “Harbinger” is an another acknowledged trope in the horror genre, especially with regard to cabin scenarios.
6. Lack of cell phone reception is a frequent plot device in many movie genres. Also, in the book, the five friends are able to access the Internet through a dialup connection (131), so they are not actually disconnected from the outside world in the way that the Cabin protagonists are.
7. Again, this is a trope that was explicitly borrowed from previous horror films (e.g., The Evil Dead).
8. What else would one expect to find if not the possessions of the former occupants?
9. The Hummel that Julie admires in the book has no real significance. In Cabin, all of the characters are intrigued by a specific object. It’s explained by the Facility employees that the chosen object is a significant part of the ritual. Their method of death must be chosen by “free will” (sorta) for the ritual to work – not all that different from how Gozer the Gozerian requires the Ghostbusters to choose their own destruction.
10. The “Terrible Place” – someplace where a murder or some other tragedy took place – is a well-established trope in horror film that well precedes both Cabin and Gallagher’s book. See Men, Women, and Chain Saws by Carol Clover.
11 & 12. Young people drinking and having sex long precedes either of these stories.
13 & 14. The “fireplace of romance” scene is addressed above. (And again, Dana is not brunette.)
15. Potheads like stars.
16. Jules’ death in Cabin is actually accomplished by three of the zombie Buckners, not just the father. Also, the character parallel doesn’t hold up, as Dura’s counterpart Dana is not the first one to die, and vice versa for Julie/Jules.
17. Sam doesn’t actually die, since everyone in the book lives. That said, Sam’s faked death in the book is presumed to be at the hand of the killer (Brinkley), whereas in Cabin Curt does not die at the hands of the Buckners, but falls to his death when he tries to jump a chasm on his motorcycle. Also, Sam and Curt are not aligned previously in the complaint (the pairings are Sam/Marty and Ian/Curt).
18. The passive voice is clever here. The arm that “is shown” in the book actually is laying on the passenger seat of the car. Also, the arm turns out to be a prosthetic, and thus is false proof of Sam’s death. In Cabin, Jules’ actual head is actively thrown through the cabin door by the Buckners.
19. In a horror movie, it seems like it would be expected that at least some of the main characters die at the hands of the monster. Ian and Holden are not paired elsewhere in the complaint. (The pairings are Ian/Curt and Matt/Holden.)
20 & 21. Although Matt knocks over the vase, it’s actually Julie who discovers the camera (or notices something out of place, which turns out to be the camera, anyway). Marty is alone when he discovers the camera and doesn’t have anyone to inform. As with the other male pairings, this pairing is out of whack (previously pairings are Matt/Holden and Sam/Marty).
22. Actually, all the protagonists in the book survive.
23. Not even a close “similarity.” In the book, they are being manipulated by a reality movie (not TV show as the suit alleges), while in the movie they are being manipulated by a secret government agency that intends to actually kill them.
24. In the book, the scene showing on the screens is not “horror scenes” but the scene of the five friends’ initial arrival at their cabin.
The video showed a faraway angle of the five of us pulling up to the second cabin. The shots were cut roughly like a real movie. Some shots were taken from the inside of the car, others from outside through the trees, and even one that cut in tight when Ian tagged me with that snowball. (276)
Also, in the book, the five friends are at the celebratory party, and it’s Matt who is watching the scene. In Cabin, none of the friends are at the party (four of them are presumed dead at that point), and nobody is watching what’s happening on the screens, which is how they end up missing Dana’s escape from Father Buckner.
25. “Director” is a multiuse title, which is why it works well for the head of the Facility in Cabin. I’ve already discussed the “enjoyment” factor above.
In the American Bar Association’s overview on the elements of a copyright infringement action, the ABA states that the most common way to prove copyright infringement is “through circumstantial evidence establishing (1) access to the plaintiff’s work and (2) probative similarities between the works.” It’s clear that this is exactly what Gallagher and his lawyers are trying to do with Gallagher’s book and The Cabin in the Woods. However, based on my own analysis above, I’m not convinced that evidence exists to support the claim.
First, as far as accessibility goes, it is borderline. According to the U.S. Courts for the 9th Circuit (which covers California), the access can be shown in three ways:
1. a chain of events connecting plaintiff’s work and the defendant’s opportunity to view, hear, or copy that work [such as dealings through a third party (such as a publisher or record company) that had access to the plaintiff’s work and with whom both the plaintiff and the defendant were dealing]
No such chain of events is described in the claim. The claim does make a nebulous claim that “credited entertainment industry producers…expressed interest in the Book,” but there’s no link made between these unnamed producers and Whedon, Goddard, or Lionsgate.
2. the plaintiff’s work being widely disseminated
Gallagher’s work was not widely disseminated – by his own admission, it was narrowly disseminated in a few locations around Los Angeles. At most he sold 7,500 copies of the work. Although the work was available via Amazon and is listed on Goodreads, there are only a handful of reviews for it. (None of the Amazon reviews are marked as “verified purchases.”) There should be records to show how many copies of the book sold through Amazon or other online outlets, and where they were sent to. Simply being “on the Internet” is not the same as showing that people had access to it.
3. a similarity between the plaintiff’s work and the defendant’s work that is so “striking” that it is highly likely the works were not created independent of one another
I think I’ve done a good job in showing any the similarities are, in fact, not all that striking. To the contrary, many of the similarities that the lawsuit alleges are factually incorrect, such as the various hair colors and personalities of the characters. Most other similarities are nothing more than genre similarities. The potential innovation of a horror situation being played out for others’ amusement was previously done by Whedon in Buffy. And even if there is some slight similarities between the “twists,” they are implemented so differently, with such drastically different results, that to claim the ending was copied is simply absurd.
I don’t know if the courts will see it my way. It’s possible Lionsgate, Whedon, and Goddard will settle and the issue will never come to much legal wrangling. In any case, it will be an interesting series of events to watch unfold.