In the words of Taylor Swift, Joss Whedon is probably singing: "Are we out of the woods yet?" On April 13th, author Peter Gallagher (no, not the actor known for playing a cool dad on The O.C.) hit Whedon – director and producer of The Avengers and Buffy the Vampire Slayer – with a massive copyright infringement lawsuit seeking $10 million in damages.

Looks Like the Cabin May Have Been Double-Booked for the Weekend

In the complaint, Gallagher alleges that Whedon and co-writer and director Andrew Goddard took the idea for their successful horror movie The Cabin in the Woods from Gallagher's 2006 novel entitled The Little White Trip: A Night in the Pines. The complaint (filed in the U.S. District Court, Central District of California – Western Division) names Whedon and Goddard as defendants along with Whedon's production company Mutant Enemy Productions, and Lions Gate Entertainment. Gallagher's claim (which can be read in full here) explains the ways in which his novel and the movie are similar, including shared plots, themes, and even characters.

For example, Gallagher states: "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 trip to a remote cabin in the woods…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." He noted that: "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'…The cabin in the book is referred to as the 'Brinkley Cabin' and in the film it is the 'Buckner Cabin.'" Gallagher includes a detailed list (beginning on page 11) comparing similar elements of the two works side-by-side. When paired with descriptions like those noted above, the list is admittedly quite convincing in favour of his claim.

Additionally, Gallagher provides evidence demonstrating Whedon and Goddard would have had access to the book prior to creating their film. The evidence references the popularity of his book and the location in which the novel was marketed and distributed: Los Angeles neighbourhoods in close proximity to the defendants' residences and business operations.

But Might Gallagher Emerge from the Woods Successful?

The American test for copyright infringement is described in Feist Publications v Rural Telephone. That case established that infringement occurs upon proof of two elements: [1] ownership of a valid copyright; and, [2] copying of constituent elements of the work that are original. As the copyright holder of his novel, and considering the substantial evidence suggesting substantial similarities between the works, it would seem at first glance that Gallagher has the law on his side (note: a brief analysis of the infringement claim was done by IP law blogger Inayat Chaudhry here).

However, Gallagher's seemingly strong claim, based on the evident similarities between the works ("Julie" and "Jules" are not exactly miles apart), may not be as strong when applied to more rigorous legal review. Commentators have rightly noted that copyright laws do not protect ideas, facts, or "material traceable to timeless themes." As such, pure copying is not infringement; there must be copying of protectable (original) material. This principle will be significant if the case is litigated. Gallagher's claim admits that both works employ "a self-referential awareness of classic horror movie tropes." Attorney and blogger Oscar Michelen highlights that many of the shared clichés between the novel and movie are those "which the Scream franchise has milked for laughs over the years." Michelen concludes that Whedon's legal team will "likely argue that at best the plaintiff can prove that they are similarities but they are not substantial, and that both of them used age-old teen horror movie plot devices to move their works along."

Consequently, it appears the case will turn on the facts – are the shared elements so substantially similar that it will be impossible for the defendants to argue they are are the result of pure coincidence, and found in the realm of classic scary story-telling? In my opinion, this is not an easy case. The evidence in the complaint weighs in favour of Gallagher, but the principles of copyright law sway towards Whedon. Nonetheless, in his complaint Gallagher has demanded a jury trial. It is likely that the layperson sitting in a courtroom would see the list of similarities, the timeline of the pieces, and the evidence regarding the availability and accessibility of the novel to Whedon and Goddard and conclude that unlawful copying occurred. I would not be surprised if the powerhouses of Whedon, Goddard, and Lions Gate met with Gallagher (perhaps in a cabin) and settled this matter quietly and without the costs of litigation. Until then, I suspect Whedon will not be taking any backwoods vacations for the next little while.

Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.