Writer sees familiar ‘Things’ on TV
Copyright lawsuit claims the Netflix hit rips off screenwriter’s story, ‘Totem’
It was Will Byers’ backyard in “Stranger Things” that made Jeff Kennedy suspicious. He watched the first episode of Netflix’s streaming hit at a friend’s house after it premiered in 2016, studying the opening scenes in fictional Hawkins, Indiana.
Kennedy grew up in the Hoosier State and moved to Los Angeles to become a screenwriter. He was interested in paranormal stories – he had written one himself based on a childhood friendship that he’d been pitching around town.
Five minutes in to “Stranger Things,” which returns for a fourth season on Friday, Kennedy noticed something that made him inch closer to the TV: The 12-year-old protagonist’s humble ranch looked really familiar. So did the surrounding woods.
When Will saw a monster through his window, Kennedy reached for a second beer. After Will disappeared from a shed in his backyard, Kennedy knew something was wrong.
He paused the credits, scouring for names he knew. He didn’t recognize the show’s creators, brothers Matt and Ross Duffer. But one lower down caught his eye: The Aaron Sims Company.
The next day he binge-watched the entire season and came to a startling conclusion: “We were robbed.”
The engine that drives Hollywood
Content is king in Hollywood. Like money in New York or power in Washington, it’s the commodity that drives the town. But what happens when creators believe their content has been stolen?
Copyright law was designed to protect original works. Yet the law is ephemeral. Ideas aren’t copyrightable, only their expression — and there’s no concrete definition for expression.
The vagueness is partly by design: Lawmakers and judges are wary of stymying innovation. But some question whom the laws are protecting.
In his book, “Hollywood’s Copyright Wars: From Edison to the Internet,” Peter Decherney said the Hollywood studio system was built on copying. Companies invested time and resources into forging legal doctrines sympathetic to their free use of pop culture.
That can be good for consumers, Decherney says, allowing ideas to be built on one another. But it also means it’s extremely rare to win a lawsuit against a studio. Steven T. Lowe, an attorney who analyzed dozens of cases for a series of articles, “Death of Copyright,” couldn’t name any in the past 30 years.
The birth of an idea
Jeff Kennedy grew up in South Bend, Indiana, with all the trappings of an ’80s childhood: bikes and malls and board games and movie theaters.
Those halcyon days were spent alongside his best friend, Clint Osthimer. Becky Georgi, Clint’s mom, said they were always riding bikes and playing in the creek out back.
“Many adventures took place in those early years,” Georgi said.
The way Kennedy remembers it, Clint was the yin to his yang. Jeff was reserved, Clint was outgoing. Jeff was timid, Clint was never scared of bullies.
Clint was diagnosed with epilepsy in middle school. His seizures were scary and unpredictable. Jeff would help by placing his hands on Clint’s shoulders during a seizure, talking him through it.
Clint was quick to brush it off. He opened up to Jeff, describing the seizures as like being in a dream — he was there but everything was upside down.
Jeff moved to L.A. in his 20s to be a writer. He loved movies. But he had no experience and didn’t know what to write about. He explained his struggle when Clint came West for a visit in 2005.
A few weeks later Kennedy got a call: Clint had been killed in a car accident. He was 29.
As he grieved, Kennedy thought back to their childhood. Then it clicked.
“Suddenly, I had a story to tell, and it was Clint’s story,” Kennedy said.
An ode to his friend
Kennedy began writing about Clint’s epilepsy. He envisioned seizures as Clint’s personal demon and the place he went during them as a dark copy of real life. Lightning and electricity came to signify evil, a play on misfired signals in the brain believed to cause seizures.
He created Jackson Chance, a grizzled ex-military man with epilepsy on a quest to destroy his inner demon. And William Nerowe, a doctor and Jackson’s best friend. Their relationship was modeled on Clint and Jeff’s. Jackson’s wife, Autumn, has schizophrenia and can also see the carbon copy dimension.
Though he was inspired by his childhood home, Kennedy thought a movie needed a grander setting and changed the location to Wyoming. He came up with a title, “The Lightning Shower in Jackson Hole,” before eventually landing on the name “Totem.”
He submitted the script to the Library of Congress in 2007 to secure a copyright. He dedicated it to his friend, Clint.
‘One thing after the next’
The scenes related to Will Byers’ disappearance in “Stranger Things” were what first struck Kennedy that night at his friend’s house. He’d written similar ones for Autumn Chance in “Totem.”
Early in Kennedy’s script, Autumn is washing dishes when she sees a monster named Azreal through a window into the backyard. He appears in a cave by a shed.
The next night there’s a lightning storm, and Autumn sees Azreal through the window again. This time she runs outside toward the shed, where she’s attacked by his minion wolves.
Kennedy felt Autumn and Will’s disappearances involving sheds in their backyards was beyond coincidence. The more he watched “Stranger Things,” the more that feeling grew. “There were moments I’d have to wait a little bit, then sure enough, it’d come back to these primary, critical story elements pulled directly from ‘Totem.’ ”
Kennedy saw Jackson’s disbelief over Autumn’s death – a key plot point in his manuscript – echoed in “Stranger Things” by Joyce Byers, Will’s mom. Joyce is convinced that the body found in a rock quarry and believed to be Will’s is a fake. A funeral does little to dissuade her. Autumn’s funeral has the same effect on Jackson.
William Nerowe, Jackson’s best friend in “Totem,” thinks he’s crazy but agrees to help rescue Autumn. The police chief in “Stranger Things” initially is dismissive of his old friend Joyce before going all-in to find Will.
Some of the characters were eerily similar, too.
In “Totem,” Jackson and William are aided by a 10-year-old girl with a shaved head and telekinetic powers who creates a rupture between dimensions that allows Azreal to enter the real world.
As Will’s friends search for him in “Stranger Things,” they find a 12-yearold girl with a shaved head and telekinetic powers who creates a gateway to the alternate universe where Will is being held.
“One thing after the next indicated pretty quickly that they were using my material,” Kennedy said.
In July 2020, Kennedy sued the creators of “Stranger Things” and Netflix alleging they brazenly infringed on many elements of “Totem,” including characters, plot, sequence, themes, setting, mood/tone and dialogue.
Attorneys for Netflix have argued against Kennedy’s claims. “Mr. Kennedy’s complaint is preposterous; we intend to continue to defend it vigorously and we expect it to be soundly rejected,” the company said in a statement.
A pitch for a movie
Kennedy created Irish Rover Entertainment and hired a production company, Evergreen Films, in 2009 to help turn “Totem” into a movie. The company suggested contracting a concept artist – a designer who creates visual representations of ideas for movies or TV shows, to help pitch studios.
The production company proposed a few options. One was Aaron Sims.
Kennedy jumped at the chance to work with Sims, who may be the foremost monster-maker in Hollywood. His credits are considerable: “Batman Forever,” “Men in Black,” “War of Plant of the Apes” and a hundred more.
Kennedy said he shared everything with Sims, down to childhood photos. And he was thrilled with Sims’ work, copyrighting a live action demo and concept art that Sims produced in 2010.
Despite the forward momentum, Kennedy had a hard time getting studios to bite. He was working stereotypical jobs of an aspiring creative in L.A. – auditioning as an extra and bartending – to keep his schedule flexible for lastminute pitch meetings.
It became too much. He cut ties with the production company and pursued corporate jobs. But he stayed in touch with Sims and his partners.
“I told him from the beginning, ‘You have carte blanche to share this with anyone,’ ” Kennedy said. “I trusted Aaron that if he gave it to Steven Spielberg, the next step would be Steven Spielberg is going to have me into his office.”
That’s why, when he saw Sims’s name roll by in the credits of “Stranger Things” that night in his friend’s apartment, his heart sank.
Sims declined USA TODAY’s request for comment through his company, directing a reporter to attorneys representing him and Netflix.
In his suit, Kennedy alleges infringement – by Sims, the Duffers, Netflix and production company 21 Laps Inc. – of promotional art, storyboards, creatures, visual effects, CGI characters and the live demo created by Sims for “Totem.”
The Duffer brothers’ side
Access is a fundamental part of copyright law. Someone can’t copy work they’ve never seen.
Much of Kennedy’s lawsuit centers on Sims: his access to “Totem” on one hand and his work with Matt and Ross Duffer on the other.
The Duffer brothers had a rocky entry into Hollywood. In 2011, Warner Bros picked up their first movie, “Hidden,” and hired them to direct. The studio brought in Sims to help, introducing him to the Duffers. But the brothers have said in interviews the project lost the attention of studio executives and was released straight to video. Their next credit was a writing job in 2015 for M. Night Shyamalan’s Fox series “Wayward Pines,” where Sims was a concept artist.
“By the time we came out of that show, we were like, ‘OK, we know how to put together a show.’ And that’s when we wrote ‘Stranger Things,’ ” they told Rolling Stone.
The project, originally called “Montauk,” was based on an urban legend of secret governmental studies into aliens and mind control at Camp Hero in New York. The Duffers set it in the 1980s and said they drew inspiration from their favorite movies and writers of the era.
They pitched it to Netflix in 2015 with a pilot script, a “look book” illustrating their ideas and a video trailer filled with imagery from Spielberg and John Carpenter movies.
A little more than a year later, the show was released – an incredible turnaround time. They were still writing episodes while casting and building out the team.
Sims was one of their hires. He’s credited in the first two seasons.
How to prove infringement
In addition to access, two works must be “substantially similar” to prove infringement. As with most things in copyright law, what rises to that level is amorphous.
Though a writer may copyright a script, individual elements in that script may not be protected. Facts, like ideas, are not subject to copyright. Genre tropes, like time travel or creepy aliens, called “scènes à faire,” also are unprotectable. In a famous case brought by the creators of “Star Wars” against “Battlestar Galactica,” a judge ruled that no one can own warfare in space.
Kennedy’s case hinges on substantial similarity. His exhibits include a laundry list of alleged overlap.
There are big things, such as the parallels between Jackson Chance in “Totem” and Joyce Byers in “Stranger Things,” and their quests to rescue their loved ones from monsters in alternative dimensions. Both protagonists are guided by their loved ones’ drawings, which they use as navigation, as well as the young girl with supernatural powers and a shaved head.
Seizures and visions are central plot devices in both. Jackson’s epilepsy in “Totem” gives him visions of the monster and alternate dimension. Will Byers experiences the same in Season 2 of “Stranger Things.”
Lightning and electrical currents also indicate the presence of the monster in both tales and the monster has shapeshifting minions – wolves in “Totem” and dogs in “Stranger Things.”
Attorneys for Netflix, the Duffers and Sims have argued that the two works are objectively different “in virtually every imaginable measure.”
In their motion to dismiss filed in December 2020, they argued the only similarities between “Stranger Things” and “Totem” involve the rescue of loved ones who have been abducted by a monster and taken to an alternate dimension – which they say is a general concept and not protectable.
Childhood played out onscreen
In early 2021, Kennedy’s suit survived its first big test. The judge denied Netflix’s motion to dismiss. The case is now in discovery, where both parties gather and exchange facts.
In the Netflix series, Kennedy sees his relationship with his best friend play out onscreen.
He sees his childhood in the way the kids ride their bikes through town. Their games of Dungeons and Dragons. How they battled demons together.
He sees himself when Mike Wheeler holds the shoulders of his friend Will Byers as he’s having a seizure.
Those are the very things that stood out to Georgi, Clint’s mom, as she watched “Stranger Things.”
“I just felt really sad for Jeff,” Georgi said. “What had been an effort to honor his friend, and I think to some extent really demystify a seizure disorder ... was powerful to me. To see it taken from him, it was just heartbreaking.”