We Asked A Lawyer Why 'Stranger Things' Hasn’t Been Sued For Copyright Infringement
"Stranger Things" opens a gate into a parallel universe beyond copyright infringement laws.
Photo courtesy of YouMakeItStranger.com.
Warning: this review contains spoilers and Cintra’s opinion that the Duffers totally ripped off our classic 80s heroes!
From the first episode of the first season of Stranger Things, which premiered in July 2016, it’s been clear that its center is a not-unfamiliar batch of archetypes. To accuse Stranger Things of being derivative is to accuse a hotdog of being made of pig sweepings, but in an age of remakes and reboots and homages, Stranger Things stands out as a new kind of horse, filled with Steven Spielberg and Stephen King Trojan warriors. There’s a squad of benign, pre-adolescent 6th-grade dorks: a Stand By Me-cum-Goonies quartet of the usual pal-melange (brainy kid, sensitive kid, fat kid, black kid), riding BMX bikes around a Speilbergian landscape of 1980’s cul-de-sac suburbia (with virtually identical wood paneling, lumpy striped couches, wall-to-wall carpet, plastic laundry-baskets, neurotic clutter, Star Wars action figures and eerie toolsheds that rattle in the moonlight). There’s the obligatory cute teen sister on the verge of sexual awakening, and two cute boys hormonally aching for her: a BMW-driving, rich campus swinging-dick, and a broody, lurky Tony Perkins guy from the wrong side of the tracks (who, though poor, you know is cooler than the BMW guy, because he makes his little brother—Will the Sensitive Kid—mixtapes of The Clash ).
In the much-anticipated Season Two, Will has been rescued from the lair of unspeakable evil (though he occasionally coughs up faceless anthropomorphic slugs), and his frenzied mom (Winona Ryder) is finally dating a nice guy. (It is particularly nice to see Ryder as a mature actress—albeit one who came of age and stardom in the very era from which Stranger Things draws. She has aged into a sphinx-like beauty, retained her precocious spunk, and deftly employs all of the nervy residue from her inevitable child-star emotional collapse to the role of the anxiety-shredded, scatterbrained single-mom.) Eleven (Millie Bobbie Brown) is getting more rebellious and teeny, harnessing her psionic Carrie-cum- Firestarters to employ a white-noise hissing TV screen exactly like the one that facilitated so many paranormal nuisances in Poltergeist. A few new characters also call on hefty archetypes: a cool tomboy called “Mad Max” (I shit you not) and her hot scumbag loadie of an older step-brother, who looks like a Nazi eugenics result of a circle-jerk between Brad Pitt, Jared Leto, and the late Heath Ledger; he even laughs savagely with bloody teeth like Fight Club’s Tyler Durden and/or The Dark Knight’s Joker when you beat the shit out of him.
And with one thing and another, this rag-tag bunch of heroes overcomes unspeakable eldritch evil in a series of scenes that uncannily plunder the most memorable moments from classic blockbusters of the fantasy/horror genre.
After re-binging Season 1 and charging through Season 2, I felt as though the scenes weren’t “referenced to” or performed in “homage” so much as looted and stripped to the bolts, with only the shallowest veneer of an original plot binding them together into an “original” narrative—in the same way a car thief might switch out license plates. Among some of the more indelible cinema moments the show’s creators, The Duffer Brothers, Frankensteined together for their “original” series are:
- The famous scene from E.T. where Elliot finds the alien in the toolshed
- The famous scene from E.T. where Drew (“Firestarter”) Barrymore dresses the alien up in a dress and blonde wig
- The famous scene from E.T. where the kids on BMX bikes must use supernatural powers to escape from government vans
- The addiction-to-the-source of evil, bad-Bilbo freakout from Lord of the Rings
- The exorcism scene from The Exorcist
- The reveal of the space-crab monster attached to John Hurt’s face in the first Alien.
- Indiana Jones in the pit of snakes
- The Silkwood shower
- Richard Dreyfuss going nuts over mashed potatoes and destroying his home to build a monument to his irrational beliefs, in Close Encounters of the Third Kind, of course
I could go on, and on, and on.
For me, the biggest supernatural thrill of the series was the fact that somehow, through some mysterious, previously undiscovered intellectual property law loophole, the Duffer Brothers got away with an intellectual property heist of a rapacious blatancy unseen since Vanilla Ice stole the bass line to Queen/David Bowie's "Under Pressure."
In interviews, the 33-year-old twin Duffers, Ross and Mark, are blithely unrepentant of this fact, and even humble-braggy. They knew what they were doing. “We were just harking back to the classics,” Ross Duffer told The Guardian earlier this year. To pitch the series to Netflix, the Guardian reported, they made a 30-page “lookbook,” filled with images from Spielberg and King movies. “We took an old Stephen King book cover and had a lot of images from the movies that inspired us,” Ross said.
Even the Duffers’ director of photography, Tim Ives, was in on the caper: he concisely summarized his “mantra” on the set of Stranger Things for Quartz, in late October: “What would Steven [Spielberg] do?”
A gnawing question began to obsess me: how have the monolithic entertainment industrial complexes of Spielberg and King not slapped the identical twin Duffer Brothers with an intellectual property infringement lawsuit that bombed them back to the development stage when their mutual embryo first divided?
I’m not the first to find the Duffers’ methods suspect. “The best lesson to be taken from the success of Stranger Things is that there is far more value, commercially and artistically, in successfully ripping off a popular story or popular genre than there is in in explicitly remaking or rebooting a particular property,” Scott Mendelson wrote for Forbes in 2016.
Deeply concerned about the Pandora's Box this cut-n-paste type of "directing" would open up, I began calling lawyers, thinking there had to be some kind of shady back-room deal between Netflix, the Duffers, and the studios that own the ur-movies cannibalized by them.
My contract attorney Nick explained a few nuances of intellectual property law to me: while names and likenesses are protectable, ideas, images and stories are not. You can have a police-chief in an Indiana Jones-hat muttering Indiana Jones-like dialogue in an Indiana Jones voice, as long as you don’t call him “Indiana Jones.”
Unsatisfied, I rang up another friend, a very prominent defense attorney (who, when quoted in print, goes by the pseudonym Mark Crystal, Esq.).
“You can do it, as long as you don’t engender confusion in the marketplace,” said Crystal. “You can rip off whatever you want, if you’re plainly referring to something, but not substituting it. You’re within the law.”
“This wasn’t a pastiche or a paean or homage,” I argued to Crystal (who has yet to watch Stranger Things.) “This was the Duffer Brothers murdering classic film moments and wearing their skins as director suits. Why aren’t classic scenes protected the same way song-hooks are? How can George Harrison have been sued by The Chiffons for copyright infringement on ‘My Sweet Lord,’ if the Duffer Brothers are still roaming the streets?!”
“You’re making the same argument as patent trolls in the entertainment industry. It’s okay to make an original work derivative of other work.”
“Original!” I sputtered. “I’m not talking about Picasso vs. Georges Braque, here.”
“In that case, you’re objecting to Stranger Things because you think it’s schlock, which means you’re making the same argument the Nazis did about ‘deviant art.’ Lax artistic merit is not a pretext for defining legality. Whether the work is subjectively shitty or not isn’t the test.”
“So in that case, it’s like pornography,” I countered. Crystal agreed, defending Stranger Things by comparing it to The Honeymooners vs. The Flintstones, and/or The Honeymooners vs. its porn-parody, The Hornymooners.
“So… I have an idea for a movie,” I snapped. I decided to persuade Crystal to my cause by making him listen to me read the following treatment I wrote, inspired by Stranger Things:
“I want to call it Hollywood Boulevard. It’s about an aging film actress named Nora D’Osmond who owns a nightclub called Casablanca.
She busts a bunch of high-school teens from the same film class with fake ID’s, all of which were provided by their leader: a wily, precocious intellect named Fergus Booler. In lieu of busting the kids, she imprisons them in her crumbling estate until they finish writing her ‘big comeback’ screenplay. The teens work poorly together, being from different socioeconomic backgrounds, but have emotional revelations discussing their class and status differences. Nora’s weird old gardener (think Bill Murray) is jealous of Nora’s attention—he’s a deranged ‘Nam veteran who thinks he’s being stalked by a robotic gopher. Fergus attempts to free everyone by seducing Nora, but she becomes obsessed with him. When she discovers Fergus is in love with Molly, the posh, sassy redhead of the class, she boils Molly’s pet rabbit. Let’s add an arrest subplot in which her devoted gardener saves the day: he distracts the police by blowing up her extensive garden with grenades he’s been stockpiling in his toolshed (to the upbeat sound of Kenny Loggins’ ‘I’m Alright’). In the end, Nora’s renewed conscience compels her to give Fergus and Molly her private plane. She bids them a brave, weeping farewell on the tarmac. As the plane departs, she stands in the rain in her vicuna overcoat and fedora, holding a boom-box over her head, blasting ‘Don’t You Forget About Me’ over the closing credits.
Sequel teaser: Fergus and Molly skydive out of Nora’s plane in Ronald Reagan masks, because they are going to rob banks like Bonnie and Clyde.”
“Hmm!” said Crystal, when I finished.
“Oh, and I have action figures, all I’d really need to do is hold Barbie under a blowtorch for a few minutes, then put her in a miniature Halston II evening gown,” I added, for extra oomph.
“I think it’s great. It’s totally legal, and you should make it. Hell, if you have any copyright issues, I’LL defend you.”
I was crushed.
“Steven Spielberg is himself making a Stranger Things right now: Ready Player One! It’s a V.R. thing entirely based on 80’s movie clichés,” Crystal gloated. “Let’s put it this way: I could easily argue that you are a cheap ripoff of Cyndi Lauper. But in your defense, you clearly don’t ‘Wanna Have Fun.’”
I hung up on him.
Stranger Things succeeds by blurring the lines between originality and theft, memory and false-memory. If you wanted to make it into a metaphor about predatory capitalism, you could hardly find a better one—but Stranger Things isn’t that deep. To bastardize Matt Taibbi’s timeless metaphor for Goldman Sachs: the Duffer Brothers are vampire-squids, using their blood-funnels to suck out all of our mental checks and balances against brands like Eggo Waffles and KFC, by retroactively Trojan Horsing synaptic connections to these brands into our nostalgic memories of movies like E.T.
This kind of screenwriting is at best, I think, laissez-faire. It’s possibly sacrilegious. The Duffer brothers built Stranger Things on the sacred burial ground of our collective memory, but for what creative end? To desecrate it with product placement?
But hey, who doesn’t love vampires. Or waffles. Or squids. Or evil, at this point.
Interested in my Hollywood Boulevard, Netflix?
(Hey, stranger things haz happened).