You are a US judge having to make a ruling on a case in which plagiarism/actionable copyright infringement is claimed.
The defendant ("Mushroom") is the author of the successful Dark Witch short story (a storybook with illustrations with a plot where a young, wicked witch breaks into a magical school to steal a magical treasure, only to be defeated and foiled by two First Year children and their magical pet hamster). This story was published in 2021.
Now in 2019, the plaintiff ("Xavier"), published a successful short story titled "Magical Mess." Unlike "Dark Witch," "Magical Mess" was not illustrated. The plot of the story, was that a young wicked witch breaks into a mansion owned by an elderly wizard while he's not at home to steal some magical treasures, only to be defeated and foiled by his two visiting nephew children who had never heard of magic before.
Xavier's story was a hugely successful and widely read story and the author made millions off the work, the movie studios have approached Xavier to turn his story into a movie.
Mushroom's work was published in 2021 and just like "Magical Mess," it became quite the best-seller. In the back of the illustrated book, the author has inserted a visible note that says "The story was inspired by and is written in the style of Xavier's work titled Magical Mess. Thank you for the inspiration."
Xavier became aware of this story near the end of 2021 and has decided to sue Mushroom for plagiarism/actionable copyright infringement.
Here is a brief summary of both stories:
Xavier's story:
A wicked witch knows that an elderly wizard is going to a "council meeting" and will have treasures hidden inside his mansion that can be used to further the wicked witch's schemes for world domination. Once the wizard leaves, the wicked witch enters the mansion using magic, goes into the attic, and begins to bag and steal everything in sight.
Two sibling children (the nephews of the wizard who know NOTHING about magic or the magical world) hear noises in the attic. Their grandpa said "Don't go into the attic" but they wonder if someone is trying to steal something so they check it out.
The witch sees them and runs towards them. The children run and drop a bunch of marbles which the witch trips over (several bookshelves also crash land all over the witch). The witch catches up to them again only to trip disgracefully over the slightly wet floor. Despite being in danger, the children laugh because they have never seen someone this clumsy.
The witch stands up (really angry) and uses magic to create a solid wall of plants to block the children's escape. Then she tries to use a Power Word to levitate and bind the children. However, due to the presence of a magical mirror nearby, the witch levitates and binds herself by accident. As they check out the bag which is full of their grandfather's magical stuff, the children realise two things at this point: 1. She's some kind of a witch, like in the bedtime stories except a real one and 2. She's here to steal some things from grandpa.
Having put 2 and 2 together, the children take some fire potions and begin to burn away at the plant wall so they can escape. The witch frees herself from her own bind and walks up to the children. She grabs the boy and threatens him with death but then the girl jumps down the witch's feet causing the sorceress to yelp and drop the kid. The witch fires off a hex beam but it is avoided, strikes a mirror, and bounces back, causing catastrophic damage to herself. The children rush off behind a wall and begin to hurl potions from the bag of stolen goods at the witch (who returns fire with spells). One of the potions explodes and the witch flies headfirst into the ceiling, tons of magical bees are somehow summoned and they begin to viciously attack the witch. The children watch for a while, then they escape.
The witch eventually recovers from this damage and vows to end the children very painfully. In a final showdown, the children attempt to bait the witch into a trap. The witch smartens up and sees through the trap; she surprises the children by teleporting and re-appearing behind them, instantly freezing them with the Power Word. However, instead of just killing them, the witch decides to "reward herself" with one of the potions from the bag of stolen goods. The potion (titled "Pleasure" but turning out to be some kind of liquid magical LSD) works unexpectedly and weakens her as she enters new states of euphoria. This lapse in her powers allows the children to free themselves from the bind, grab some wands, point them at her, and blast her with magic and knock her out.
The elderly wizard returns to find the witch tied up by the children. The children explain that she's some kind of a witch who came here to steal his stuff and they had to stop her. In turn, the bemused grandfather explains to them that there is a world of magic that exists and he is part of it (there are good magic users, and there are bad ones, like the witch they just foiled). The witch is then force fed some Truth Serum and is made to confess all of her crimes. Instead of turning her over to the authorities, they reach an agreement in which the witch would agree to work as a servant in the house for several months as penance while monitored by the gleeful kids. To help with the enforcement of this arrangement, the elderly wizard promptly confiscates all of the witch's magical powers (to be returned after the term is served).
Mushroom's story:
Two 11-year-old siblings are First Years attending a school of magic. After sneaking out of their dorms, the two of them are suspended from a much-hyped schoolwide trip to a nearby magical village. 1 teacher supervises them. Everyone else leaves.
A wicked, young witch (the titular Dark Witch Maggie) breaks into the school to steal a collection of magical relics from the headmistress’ office. The teacher goes to check on the noise and runs into the witch; the witch quickly hexes him unconscious and drags him away.
The witch sees the two children playing with a ball in the great hall and decides “not worth my time, it’s only children.” As she turns around she gets hit by a ball and crash lands, screaming over a pile of armored suits.
The children approach the witch with concern:
“Oh no! Sorry about the ball. Hmmm... what’s your name? You’re not a teacher!”
The Dark Witch responds by hexing the boy down with ropes. The girl: “Hey! Why did you DO THAT!”
The girl draws her wand but the witch waves her hand and sends the wand flying off. Then she lifts the girl into the air with a telekinetic bind. She goes up to the girl and starts making threats when suddenly, the girl's magical pet hamster jumps out and messes the witch up. The girl is freed from the bind; she promptly kicks the toy ball into the witch, causing the witch to trip over the fallen armour, fire off a random spell at the roof, and get buried by a cascade of falling bricks. The girl frees the boy from the ropes and they both run off.
The witch re-emerges from the bricks; enraged, she comes after the children.
The kids run into a classroom and hide. The witch enters and starts issuing threats while using magic to flip the chairs and desks around. While hiding, the boy randomly touches a silver cup and teleport right in front of the witch (“oh s****!”). The witch turns and hexes the boy with a magical projectile. However, it hits the silver cup and bounces off... it strikes a magical mask and there’s a secondary rebound... it comes full circle and the witch gets hit by her own magic. KA BOOM!
While the witch takes heavy magical damage and runs around howling, the two kids hide inside a magical cabinet. The witch is really angry and rushes up to the cabinet, yanking it open after issuing a magical command. What does she see? The grinning girl throwing her a giant cage filled with pixies (“Caaaaaaaatch!”). The witch catches it but it’s not a winning move. The mob of pixies come out of the cage, drag her into the air and proceed to beat her up.
The children escape again. The witch summons a pair of giant glowing phantom hands and this flying monstrosity chases them all over the school. The children run into a classroom with runes and a silver cross and this seems to ward off the hands.
The witch enters the room in the form of a flying green sphere of light before re-materializing. She promptly traps the two kids in a telekinetic bind. Instead of getting on with it, she decides to talk about all the ways she can make them suffer... finally settling on drawing a magic drain symbol on the ground which she will use to permanently remove all of their magic. The witch is literally one word away from ultimate victory. The girl then tells her that she’s not scared because while the witch may be powerful she’s just “an evil woman” and she “learned in school that good will always triumph over evil.” The witch is amused at this childish delusion and asks how she expects that to happen.
The hamster returns, bringing with him other hamster friends from the common rooms. Just as the witch is about to drain the kids' magic, the hamsters rush in and attack the witch by surprise... causing the kids to be freed from her bind. The boy pulls out a wand and fires off a hex at her; the Dark Witch is blasted back and collides into a barrel of Holy Iron, setting off a further explosion that sends her flying up and down... crash landing through a trap door leading into a magical watery dimension filled with magical electric eels...
ZAAAAAAAAAAAAP!
A thunder blast shoots out of the trapdoor... then the dazed and stunned witch flies out of it, lightning cackling throughout her and her entire form spinning several 360s. She crash lands on the opposite side of the classroom. A curtain behind her slides off and a magical mirror is activated, sucking her inside and trapping her in.
The headmistress and the teachers rush into the room, ready to fight but they see children have already defeated the Dark Witch, now trapped in the mirror. The teachers recognize the witch as a former student who went to this school 10 years ago and they casually comment on it (“she was always a cheeky one...” “wow there are signs but you can never tell which ones will go bad.”) The witch is then extracted from the mirror in a levitating bind and promptly drained of her magical powers using the very magic drain trap she created herself. Then the teachers spray her with a Truth Powder and it causes her to speak against her will. She’s prompted to give her name, confirm her past attendance at the school, admit that she broke into the school to try and steal magical relics, that she picked this day because she thought the school would be empty, that she attacked a teacher and tried to attack two students. She’s then made to give a comprehensive step-by-step narration on how she lost to two 11-year-olds.
The witch is then moved to another classroom and is forced to do lines from the blackboard. The message reads:
“I must not break into a school to steal things, hex teachers and students, vandalize school property, and perform harmful, dark magic. I am very sorry for what I have done and I will not do it again.”
The 27-year-old witch is made to write this out 1,000 times at a desk. The witch is told by the headmistress that if she doesn’t cooperate, she will get extended timeout in the mirror. The two First Years and other students are tasked with keeping her on track and the headmistress callously discards a few pages she completed, saying the writing needs to be legible. The children point out the occasional errors in spelling, punctuation, and word order. The sullen witch eventually finishes writing but it takes many hours.
The Magical Police enter, handcuff her, and march her out of the school and cart her off to magical jail.
Xavier claims that the story crosses the copyrights infringement line because of the following thematic and plot similarities:
Both stories are about a wicked witch trying to steal things from a confined space, and battling two children (who act as the underdogs). Except for name changes, it's more or less the same thing.
Both stories take place in a confined space and feature an extended defeat sequence with slapstick mechanics that is the focus of the story; in both cases there are many instances the witch "could have won" but blundered.
Both stories feature returning adult(s) who find that the wicked witch is already defeated.
Both stories feature an interrogation using a magical truth concoction of some kind and a focus on a creative punishment as the ending.
Mushroom says that the story borrows elements, tropes, and themes from "Magical Mess" (and due credit is even given for the inspiration) but that this doesn't cross the line into ACTIONABLE copyrights infringement. If it is "copyrights infringement" then its "copyrights infringement" in the same sense that all subsequent high fantasy works could be said to have plagiarised Lord of the Rings. The two stories are "substantially different."
In particular (as part of a very long list), the lawyers mention the following:
- The way the two witches are defeated is completely/substantially different on all counts not just in sequence but in substance. To list a few examples, there are no pixies, bouncing toy balls, hamsters, or teleporting magical trophies in Xavier's work.
- There are themes and tropes that exist EXCLUSIVELY in Mushroom's work (the witch having graduated from the school she is returning to steal from and how the teachers respond to this, the children being IN TROUBLE but still becoming heroes in their own way, the inclusion of magical pet hamsters) and there are ideas that exist EXCLUSIVELY in Xavier's work (the idea that there is a magical world and a non-magical world, the Dark Witch takes place entirely in a magical world while Xavier's work suggests that the two can be blurred).
- There is a world of difference between being forced to become a household servant/maid for a few months and being forced to write 1,000 lines from a blackboard and then being sent off to a magical prison.
- The claim of parallel setting has no merit (a magical school is completely different from a mansion owned by a wizard, it creates an entirely different visual and thematic universe).
- It is quite clear that far from the product of simple, lazy plagiarism, the Dark Witch is a story with its own literary merit and which is very clearly the product of hard work and creativity.
...
Xavier asks for the following remedies:
1. All accumulated, present and future profits from the Dark Witch story needs to be disgorged and transferred over to Xavier.
2. The Dark Witch (and all associated works) must cease all production and publication unless where the rights to profit and control of such projects are handed over to Xavier.
3. All official records throughout all official registries all over the world need to be amended to show that Xavier was correct in this dispute and that the Dark Witch is the product of plagiarism.
4. Excessive punitive damages (to be accessed by the courts but a suggestion of millions is given) for Mushroom's bad faith defence in the face of obvious, excessive, inexcusable levels of copyright infringement.
Now you are the judge, which means you can adopt any (or none of the above), or come up with your own remedy. Is the Dark Witch acceptable as a substantially independently conceived work of art (albeit with acknowledged thematic inspirations from Xavier's work)... or is it as Xavier and his lawyers argue, unacceptable copyright infringement/plagiarism? What should the courts do if anything?
Right now, both authors made some pretty good amounts of money from these works.
Please consider real life examples of similar cases (if you know any) and what's allowed to slide/not slide in real life. Also, try to work from what you personally consider copyrights infringement and where and how the law should step in.
Justify your ruling.
