Protection of the Combination of the Unprotected Elements under Copyright: Inside Out - Fordham Intellectual Property, Media & Entertainment Law Journal
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Protection of the Combination of the Unprotected Elements under Copyright: Inside Out

Protection of the Combination of the Unprotected Elements under Copyright: Inside Out

Copyright is an intellectual property law which protects the original literary, dramatic, musical, and artistic work. The law protects the work from unauthorized use by any other person other than the copyright holder. Although, the recent discussions have raised the question, whether the copyright protection is extendable to the combination of the unprotected elements of copyright protected work.

The issue was raised in Masterson v. Walt Disney Company,1 wherein Walt Disney’s movie, Inside Out, was alleged to have infringed the copyright of Carla Masterson’s work. The movie was based on the combination of the unprotected elements of her two separate works, first was the poetry, ‘What is on the other side of the Rainbow’ and the second was a movie script, ‘The Secret of the Golden Mirror’.2

The movie was purported to have substantial similarity with the two protected works of the poet, as the poem had a cloud-like character which represented different feelings such as Mr. Positively and her script narrated the story of Mr. Positively trying to cope up with the struggles of the child in an unhappy family situation.3 On the flip side, the movie tells the story of a child named Riley, an 11 year old girl, and her brain’s headquarters with characters representing different feelings. These characters as her emotions such as Joy, Anger, Fear, Sadness, and Disgust, contribute to Riley’s life by determining her character as a human.

The case was dismissed by the district court which held that there was no substantial similarity in literary works and the movie. Masterson filed an appeal in the United States Court of Appeal for the Ninth Circuit, the court replied to the argument raised by Masterson that the district court erred in dismissing the case as the dismissal was done prior to the conduction of discovery. The court relied on the Rentmeester v. Nike, Inc.,4 and elucidated that “nothing found in the discovery can alter the infringing work not being substantially similar to protected work.” Moreover, the court held that the rejection of expert testimony is not the abuse of discretionary power of the court and that it does not necessarily require expert testimony in every case where there is a question of substantial similarity. Rather in cases where the court uses its judicial experiences and common sense to determine the claim of similarity and on comparison of the two works, no substantial similarity is found, so literary works should not receive any special treatment.5

In order to determine the substantial similarity in two works, the court follows a two-level analyzing process. The first is an extrinsic test which involves “analysis of the objective similarity of two works focusing majorly on taking out the protectable elements and filtering the unprotected elements from the plaintiff’s work.” The elements that are referred to as unprotected are the concept or the ideas parts of the work which may have already existed in the public-domain or are too generic in nature. The protected elements are referred to check the similarities of the work based on the plot, dialogues, setting, theme, characters, etc. The second, intrinsic test is based on the subjective comparison between the two works focusing on the concept and the feel of the works. Albeit, the extrinsic test was applied by the district court and thereby it is only relevant to determine the reasons for dismissal.

Through the extrinsic test, the court came to the conclusion that both the works share a general theme, i.e., the feelings and the reasons behind it.6 The book and the movie both are based on the story of a child and their emotional struggle but the movie goes forward to have golden orbs, which represent the happy childhood memories and characters on emotions trying to save these memories.7 The similarities purported by the Masterson are too generic themes and therefore are the unprotected elements of her protected work.

The combination of these unprotected elements was recently discussed in the case of Skidmore v. Zeppelin,8 2020, wherein for the combination of these elements to corroborate the allegation of substantial similarity the author should provide the combination, a set of the new arrangement to show the similarity in the works. In Masterson’s case, the plaintiff has been unsuccessful to show that the combination of the unprotected elements has a substantial similarity of the arrangement, and although there might exist a lot of similar themes, they cannot be considered original for the protection under copyright law.

The Ninth Circuit Court affirmed the ruling of the District Court that there is no infringement of the copyright of Masterson’s work by the Disney movie Inside Out.

This is not the first time that a case for infringement has been filed against this movie, earlier two cases have already been reported. The first case was filed by Denise Daniel, a child development expert, who alleged that Disney and Pixar movie has copied the idea of Moodsters her TV show infringing her copyright.9 The claim was based on the similarity of characters and the designated color to emotions like red to anger etc. The district court elucidated that in the case where the allegation is solely based on the similarity of the individual character and not the whole work, the Ninth Circuit Court has established a three-phase test in order to protect the character individually against the whole work. The test set forth in the case of DC Comics v. Towle,10 where in order to be protectable separately, the character must have the following;

  1. Physical and conceptual qualities.
  2. Substantially delineated, as to be recognized as the same character every time.
  3. Distinctive and should have a unique element.11


In Denise Daniel v. Walt Disney,12 the court held that although, the plaintiff’s character meets the first requirement for separate protection for the character, it does not qualify with the other requirement as it is not distinctive as characters like Sherlock Holmes, Superman, Spiderman, or Batman, etc. These characters have been instantly recognizable irrespective of the film it appears in. The plaintiff’s characters were neither found to be sufficiently distinctive nor widely recognized and were too generic to be protected for its originality.13  The Court relied on the doctrine of original arrangement and selection of the unprotected elements that can be protected but the plaintiff failed to show the originality of an arrangement of unprotected elements and therefore cannot be protected. Thereby, the Court dismissed the case without leave to re-plead.

The second case filed by Damon Pourshian, a student at Sheridan College’s Faculty of Film a renowned college for animation programming. Damon wrote a script based on which he made a short film of 14 mins titled ‘The Inside Out’.14 The short movie was based on the story of a boy and the events of his everyday life, his body parts with the brain as a commanding center, and other organs working and squabbling with each other. Damon filed a case against Disney and Pixar for copyright infringement in the District Court of California and later in the Ontario Superior Court of Justice (Canada 2019). The claim was based on substantial similarity on the theme and characters. The petition filed in the District Court listed numerous scenes with a similar setup in both Damon’s The Inside Out and Disney’s Inside Out, although, the case was dismissed. He filed another suit in Ontario, Canada, in which there was major issues regarding the jurisdiction of the court. Even though the Canadian Court did not have jurisdiction on Disney studios and other related parties, the hearing was conducted against Pixar and Disney as they had their businesses in Canada.15 The court concluded that there are no allegations in pleadings that enabled it to deduce that there is any infringement of Damon’s copyright and it also rejected Damon’s request to amend his claims in the pleading.16

The courts have arrived at the conclusion that in a copyright protected work, there are many unprotected elements and the use of such unprotected elements cannot constitute an infringement of the copyright. These unprotected elements are usually the theme or nature of the character or the background setup or the dialogues. These unprotected elements are too generic in nature or are already in pubic domain and therefore lack the ingredient of originality for the purpose of protection. So, even if the work is protected under copyright, some elements can be used without infringing any law. Although a combination of these unprotected elements cannot be protected under copyright law, similarity in the arrangement of these combination of unprotected elements can constitute an infringement of copyrighted work. The Inside Out makers were therefore not found to be guilty of copyright infringement as they used the unprotected elements of the copyright protected work of Masterson.

  1. Carla Masterson v. The Walt Disney Company, No. 19-55650 (9th Cir, 2020) (U.S.).

  2. Rebecca Tapscott, Ninth Circuit Affirms Dismissal of Copyright Infringement Claim Against Disneys Inside Out Movie, IP WATCH DOG (Aug. 15, 2020),

  3. Carla Masterson v. The Walt Disney Company, No. 19-55650 (9th Cir, 2020) (U.S.).

  4. Jacobus Rentmeester v. Nike, Inc., 883 F.3d 1111 (9th Cir, 2018) (U.S.).

  5. Tapscott, supra note 2.

  6. Carla Masterson v. The Walt Disney Company, No. 19-55650 (9th Cir, 2020) (U.S.).

  7. Loeb & Loeb LLP, Masterson v. The Walt Disney Company, LEXOLOGY (Aug. 3, 2020),

  8. Michael Skidmore v. Led Zeppelin et al., No. 16-56057 (9th Cir, 2020) (U.S.).

  9. Gene Maddaus, Inside OutCopyright Lawsuit Rejected by Appeals Court, VARIETY (Mar. 16, 2020, 10:36 AM),

  10. DC Comics v. Towle, No. 13-55484 (9th Cir, 2015) (U.S.)

  11. Id.

  12. Denise Daniel v. The Walt Disney Company, No. 18-55635 (9th Cir. 2020) (U.S.)

  13. Id.

  14. Brain Gabriel, Disney And Pixar Sued Two More Times Over Inside OutCopyright Infringement, CARTOON BREW (Jun. 27, 2018, 11:15 AM),

  15. Fasken, The Ins and Outs of Canadian Copyright: Movies and the real and substantial connection test, LEXOLOGY (Nov. 14, 2019),

  16. Colin Perkel, Judge allows ‘Inside Out’ copyright lawsuit to continue in Ontario, CTV News (Oct. 16, 2019, 5:57 PM),

Shrishti Agnihotri

Shrishti Agnihotri is a guest writer from the Institute of Law, Nirma University, Ahmedabad, India.