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Orphan Black: Original Story or Copyright Infringement?

Copyright infringement

Writer Stephen Hendricks is suing the BBC and Temple Street Productions for $5 million, claiming he is the true creator of the critically acclaimed show, Orphan Black. Hendricks wrote his screenplay, Double Double, back in the late 1990s.  In 2004, Temple Street reviewed his script but was told via email from the Co-President, David Fortier, that the company was going to  ”pass.” Later, Fortier along with his friends, Grame Manson and John Fawcett, and Temple Street Vice President, Ivan Schneeberg, began to develop Orphan Black. Four years later, the series launched on BBC America, now entering it’s second season.  But did Fortier and his friends actually copy Hendricks or did they create their own independent story?

In order for Hendricks to prevail, he must show two things;, 1) that there was an opportunity for Temple Street to have copied his work , and 2) that Orphan Black is substantially similar to his script. Also known as the Ordinary Observer Test, it essentially asks whether a defendant wrongly copied enough of the plaintiff’s work to cause a reasonable lay observer to immediately detect the similarities between the plaintiff’s expression and the defendant’s work, without any aid or suggestion from others.  Temple Street must have copied more than Hendricks idea.  The ordinarily observer must see similarities in the execution of those ideas, such as plot lines, character traits, names, and scene dialogue.

A work is a copyright infringement if it is considered substantially similar to the work in question as viewed by the ordinary observer.

Every case begins with a Complaint, laying out the what happened and which laws were broken. So for this case, Hendricks discusses Fortier’s letter showing Temple Street’s access to his script, and then lays out how Orphan Black is substantially similar to Double Double. Hendricks starts by describing the overall similarities between the two; “the protagonist discovers that she is an ‘orphan clone’;” “the protagonist is jolted by a death…and the subsequent discovery of cloning and being a clone;” and “the protagonist is being watched by her corporate creators, and is soon on the run from them.” Unfortunately, the Ordinary Observer Test has no black and white line which if crossed is an infringement. Similarities, like these, may be considered vague, generic or obvious plot points, being the necessary result of any story about a girl who discovers that she is a clone. They are certainly not a definitive.Orphan Black

Comparing Orphan Black Characters.

Hendricks, in a more detailed analysis, spends several pages listing parallels between certain characters. Here is a just a sample:

Joanne (Double Double) vs. Sarah (Orphan Black)

  • Both protagonists are young (early 20’s), attractive women who want the same thing: to understand who they are and where they come from.
  • Both protagonists are “adopted,” raised by someone other than their birth parents.
  • Both protagonists begin the story not realizing they are anything other than who they are told and therefore think they are.
  • Both protagonists begin the story in a place of relative comfort with their origins.
  • Both protagonists come from modest means.
  • Both protagonists are not leaders or great thinkers.
  • Both protagonists are reactive rather than aggressive/proactive.
  • Both protagonists are vulnerable, smart, and truth-seeking.
  • Both protagonists are initially conveyed as being human, but whether they are human or clone remains questionable.
  • Both protagonists survive extreme threats and attacks. Their survival skills increase throughout the story.
  • Both protagonists are at the mercy of the world in terms of not having the skills or tools necessary to confront their creators and pursuers on equal ground.

Again, these are fairly standard plot devices and the kind of elements you might expect to have in a series like Orphan Black. Yet, taken as whole, the court may view the totality of the works as similar. At the same time, listing vague generalities may also create a sense that the two works aren’t that similar.  Let’s look at the examples are listed for Felix, her friend and confidant.

Jason (Double Double) vs. Felix (Orphan Black)

  • Both characters are attractive men in their early 20’s with a touch of “nerd”.
  • Both characters assist the protagonist on her quest
  • Both characters put themselves at risk and try to protect the protagonist
  • Both characters are vital confidants.
  • Both characters are devices to help us access the internal thoughts and feelings of the protagonist.

While both scripts have a friend and confidant, a stronger case could be made if Hendricks were able to describe similarities between the character’s personalities, mannerisms, or background story. Who is Felix? In the show, Felix is a member of the party generation, always up for a wild time, partaking in drugs like Molly and Cocaine for evening recreation. He’s gay, an artist, living a spacious artist’s loft; is a slave to fashion and sexually promiscuous, al of which creates a tension in the story. Sarah needs to rely on Felix, he is the only person she can trust. Yet, when she ask him to do something, the audience is never sure whether Felix will come through due to his all consuming excessive lifestyle. Over the course of the first season, Felix changes into a more dependable character, going beyond what you would have eve expected of him.

Specifics like that would be helpful for Hendrix, the lack of which is noticeable. That doesn’t mean though that the ordinary observer would not see similarities in the overall works or that certain claims by Hendricks aren’t persuasive, just that it is not an easy case. More than likely, however, this case will never go to trial and somewhere along the way, it will be settled.  Unfortunately, since settlements are usually confidential, we may never know whether Orphan Black is really a copy.

What do you think? Take a few minutes and read the Hendrix’ Orphan Black complaint, and let us know your opinion in the comments section.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

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