Talk about what’s in a name lately and perhaps The Hangover Part 2 movie easily jumps to mind. The movie has done better-than-expected business at the box office, yet it seems to remain ‘hung over’ with baggage from its past. Since releasing the movie last May, it has been as if every time the producers turn around, somebody is serving them court papers and demanding something. First, somebody sued them over Ed Harris’ face tattoo in the movie. Then another person sued them for injuries he claimed he suffered on the set of the movie. And now, yet another person is suing them, this time claiming that the producers stole the movie’s concept or idea from him and he is looking to yank the movie from the official records.
In the latest lawsuit filed last October, an aspiring filmmaker named Michael Alan Rubin is suing the makers of the movie [the Warner Bros. studio; the director and the writers] in federal court in California for copyright infringement and for defamation. Rubin, who is also suing his estranged wife, claims that that the makers of the movie stole the idea of the movie from his own movie treatment “Mickey and Kirin” which was based on his own life experiences. For his troubles, Rubin is taking no prisoners: he wants the certificate of copyright registration for the movie to be yanked plus damages and a court order banning any further sale or distribution of the movie.
Now, some background: In real life, Rubin claims that in 2007, he had gone to Japan to marry his Asian girlfriend in a traditional ceremony and then traveled with her on a honeymoon to Thailand and India. The couple then broke up on their honeymoon and Rubin ended up on the Indian vacation haven of Goa where he picked up acting gigs and worked on a movie treatment that detailed his life experiences with his wife.
So, that’s his case. For the moment Rubin’s lawsuit is not looking like such a heavy duty, high voltage case. Yet a win for him could mean that it gets pretty dicey going forward for any filmmakers to make movies based on events in somebody’s life even if the movies are billed as fiction. But he has to win first. And what are the odds that Rubin will in fact win? Well, not so great, it seems.
For starters, the defamation branch of his case looks weaker than the copyright side, which isn’t exactly a good horse to bet on either. Rubin’s defamation claim seems a pretty bold one: He claims that The Hangover Part 2 movie damaged his reputation by portraying him as a guy who would do drugs and have sex with a transsexual prostitute. To win his defamation claim, Rubin needs to show that the movie made a false statement of fact that damaged his reputation in the community. But his first real hurdle with this claim will be the effort to prove that he was indeed the person being portrayed in the movie. If he can’t hack it, then that’s the end of the road for his claim. And since the movie is billed as fiction and Rubin wasn’t mentioned by name or identified in any other way in the movie, he faces an uphill battle getting this job done. Things might have been easier for Rubin with his defamation claim against a Hollywood movie if both he and the story of his misadventures in Asia would have been well known to the public.
Then there’s the copyright side of his case. Quite simply, in order to win a copyright infringement case, the person filing the lawsuit has to show that the other person ‘copied’ an original work that belonged to him. In these situations, the courts look at the two works to see just how similar they are. And it is not enough to show that the second work has something in common with the first one. The person filing the lawsuit will lose if he cannot show that the similarities between the two works are more than just minor stuff. He’ll be sitting very pretty with his case if he can show that the similarities are rather striking in nature in such a way that it will be tough to chalk it all up to mere coincidence. Plus, he also has to show that the person he is suing had actual access to the first work, which would have given that person the opportunity to copy the work.
The kind of situation that would easily come to mind here is the old Letty Lynton case from the 1930s (which starred Joan Crawford) where a movie that was supposed to be based on a book ended up having more in common with a play of the same name than with the book itself. For instance, while the lead character in the book poisoned her male lover with arsenic, the same lead character in both the play and the movie itself (get this!) poisoned her male lover with the same very substance, which however wasn’t arsenic. Add to this the fact that the book, the play and the movie were all set in the same society and at the same period in time. With respect to access, it also happened that the filmmakers bought their right to base their movie on the book only after attempting but failing to buy the right to base the movie on the play.
In Rubin’s case, his life experiences obviously remain fair game for movie makers and book writers. But of course it’s a different story if he can manage to reduce his life experiences into something that can be protected by copyright, e.g. by putting it down in writing or in some other fixed form. So, is his so-called movie treatment “Mickey and Kirin” in a form where it can be protected by copyright? Maybe so! (Rubin claims he registered the thing with the Writers Guild of America.) And if so, did the filmmakers have access to the material? Here, Rubin claims that his ex-wife had ties to the filmmakers and would have been their source for the material. Can he prove that? By the way, assuming Rubin’s ex-wife simply told his life story to the filmmakers who then made it into a film, it seems like that wouldn’t be a copyright infringement issue.
If Rubin passes these gateway tests by answering these questions, then the court will get into the big question of the day, which is whether the second work (the Hangover movie) was copied from the earlier work (Rubin’s ‘Mickey and Kirin’ movie treatment). Is there a ‘striking’ similarity between the two? As already noted, minor stuff or matters of mere coincidence just won’t cut it. All these questions make for a tough road ahead for Rubin’s copyright claim. Funny thing is, the gateway questions may well be harder to crack than the big question itself.
In the end, it is clear that none of this stuff will be a cake walk for Rubin. And his odds of winning are pretty long. So, luckily for the movie, this latest claim against the movie also seems to be weakest link in the chain of attacks so far against the movie. Yet, for all its box office success, it is interesting to see just how many “hangovers” are trailing the movie. At the rate things are going, who knows what next lawsuit just might be lurking around the corner for The Hangover Part 2. Talk about something living up to its name.