Substantial Similarity

Plaintiffs, the heirs of Edgar Rice Burroughs, author of the 1912 book Tarzan of the Apes and numerous sequels, alleged that the 1981 remake film “Tarzan, the Ape Man,” produced by defendant Metro-Goldwyn-Mayer, Inc., exceeded the scope of a 1931 license agreement and infringed their copyright. Under the 1931 agreement, MGM had rights to use Burroughs’ characters in a 1932 film and to remake that film, provided the remakes did not have "material changes or departures" from the 1932 film. The district court refused to issue an injunction against MGM and dismissed plaintiffs’ complaint, finding that the 1931 agreement included a character license, or alternatively, a copyright license that was not terminated as plaintiffs purported. Plaintiffs appealed and maintained that the 1981 film necessarily infringed plaintiffs’ 1912 book, because the 1932 film was substantially similar to the book and the 1981 film was based on the 1932 film per the 1931 license agreement.

The Second Circuit affirmed the district court’s decision, noting that the 1981 film did not infringe plaintiffs’ rights because the 1981 film was substantially similar to the book only to the extent that it used the Tarzan character, which was permitted by the 1931 license.

Assuming for the sake of argument that the copyright license granted to MGM was properly terminated, the court considered whether the 1932 film was substantially similar to the 1912 book. Similarities in the Tarzan characters were discounted by the court because of the character license per the 1931 agreement. In order to decide if the works were substantially similar, the court applied Judge Learned Hand’s “abstraction test” as laid out in Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930). At the most general level of abstraction, both the film and the book “tell the story of Tarzan, an ape-man living in the jungle, and Jane, a beautiful woman from civilized society, who meet in the jungle and fall in love.” But once the court moved on to more specific levels of abstraction, it concluded that the two stories were very different:

The Book is essentially Tarzan's story, recounting his heritage, his upbringing and his search for his identity; the meeting with Jane, which occurs nearly mid-way through the Book, is only a part of Tarzan's story. The film, on the other hand, is primarily Jane's story expressing her fantasies and concerns, but telling little of Tarzan's history and nothing of his actual parentage. There are many other differences as well. In the Book, Jane is marooned on the beach, hoping from the start to be able to return to America; in the film, Jane insists on joining the expedition into an all but inaccessible jungle. In the Book, Tarzan is always on the best of terms with Jane's party, protecting its members from mortal danger at every turn; in the film, Tarzan kills three members of the safari, and another member wounds him in one of several attempts to kill him. In the Book, Jane leaves the jungle, apparently to marry another; in the film, she stays with Tarzan.

The court went on to discuss some similarities purported by the plaintiffs, but concluded that “the . . . similarities either are so general as to be meaningless, or are not similarities at all.” For example, although both stories are set in sub-Saharan Africa, the book was set on the isolated coast of Angola, while the film was set near an inland river in close contact with the outside world. In another example, the court compared how Jane used firearm differently in each work. In the book, she was expected to fight with a revolver, however she failed in hitting the target and decided to save the revolver for suicide. By contrast, in the film, Jane was expected to not be able to use firearms, however, she was able to show off her expert skill at using an rifle.