New Copyright Theory Tested in Lawsuit Over Disney's Avengers,Guardians of the Galaxy

A VFX firm asserts its software program is an original literary work and that Hollywood studios are liable for vicarious and contributory infringement.

Rearden LLC, the VFX firm that claims ownership to a popular facial motion-capture technology used in Hollywood, is not giving up on hopes of winning a copyright lawsuit against Disney, Paramount and Fox. On Tuesday, the plaintiff brought an amended lawsuit that tests a new copyright theory over blockbuster films including Guardians of the Galaxy, Avengers: Age of Ultron and Beauty and the Beast. Ultimately, the plaintiff remains insistent that these films deserve to be literally impounded and destroyed.

The background of the case is complicated, but what's essential to know is that in a previous lawsuit, Rearden was able to convince a judge that its technology was stolen by Digital Domain 3.0 and a Chinese company. After the victory, Rearden went after the customers of the technology — the Hollywood studios using facial motion-capture software to do things like de-age Arnold Schwarzenegger in Terminator Genisys or transform actor Dan Stevens into Beast for Beauty and the Beast.

In February, a judge allowed Rearden to move forward on patent and trademark claims, but rejected the plaintiff's bold copyright theory that arguably could have chilled universal use of software.

Originally, Rearden alleged that it owned the copyright in a software program's output and that as such, CG characters in blockbuster films represented unauthorized derivatives. The studios responded by telling the judge if the theory held, it would mean that authors who used Microsoft Word or artists who used Adobe Photoshop wouldn't be the owners of their own works.

U.S District Judge Jon Tigar sided with the studios.

"The Court does not find it plausible that the MOVA Contour output is created by the program without any substantial contribution from the actors or directors," wrote the judge in his decision. "Unquestionably, the MOVA program does a significant amount of work to transform the two-dimensional information captured on camera into three-dimensional Captured Surface and Tracking Mesh outputs. But this cannot be enough, since all computer programs take inputs and turn them into outputs."

The copyright claims were dismissed without prejudice, and as such, Rearden is attempting a new approach.

The company now asserts its Contour software program is an original literary work of authorship fixed in a tangible medium of expression when stored on computer hard drives. It's true that copyright law does at least protect whatever original expression is embodied in a software program, although that tends to generate controversy when courts get around to analyzing practical application. Whether or not Rearden has copyright authority may be challenged at a later point in this litigation.

The amended complaint next alleges that Digital Domain 3.0 directly infringed Rearden's copyrights when making unauthorized copies of the "Contour apparatus, whether for facial performance capture or for processing captures into output works."

The Hollywood studios are now being accused of vicarious and contributory infringement — which, of course, means the invocation of the industry's favorite weapons against online piracy.

For example, Rearden is alleging that Disney was "in a position to police DD3 and/or had the right and ability to supervise and control DD3's performance."

Twisting one of the arguments presented at an earlier stage of this lawsuit, Rearden continues, "So extensive is Disney ... directors’ supervision and control over the facial motion capture sessions performed by DD3, that defendants contend that the directors’ contribution is substantial and performs ‘the lion’s share of the creativity’ in the facial motion capture, and that consequently the directors are the authors of the results of the facial motion capture."

Here's the full amended complaint.