The success and mass cultural appeal of Netflix’s Stranger Things is in part due to the way in which it incorporates familiar story tropes and cinematic techniques to create a show that feels simultaneously fresh and nostalgic. While the influence of cultural giants like Steven Spielberg and Stephen King is obvious, at least one man feels that the show’s creators, brothers Matt and Ross Duffer, took more from him than mere inspiration.
In April 2018, Charlie Kessler filed a lawsuit against the Duffer Brothers, alleging that the Duffers had misappropriated his ideas, which he had allegedly discussed with them during a conversation at a premiere party at the Tribeca Film Festival in 2014, to create Stranger Things. Kessler alleges that he discussed with the Duffers his ideas and his unproduced screenplay “The Montauk Project” based on the supposedly “real” Montauk Project first described in the Montauk Project series of books by Preston Nichols. The supposed Montauk Project is the subject of a conspiracy theory/urban legend that purports that the United States government engaged in paranormal experiments on people, including children, at the former Air Force Facility Camp Hero located near Montauk, NY. In 2011, Kessler also made a short film based on the urban legend called “Montauk.”
The Duffer Brothers acknowledge that Stranger Things is also based in part on the legends surrounding the Montauk Project, and an early version of the show was actually also called “Montauk,” and was to be set in the eastern Long Island town. However, the Duffers claim that, while inspired in part by the urban legend, they independently created the show’s concept based on their own interest in the urban legend, and have emails dating back to 2010 in which they describe ideas for a show based on the Montauk Project before Kessler released his short film, as well as a pilot script, that while still set in Montauk, features many of the important characters and plot elements of Stranger Things and was written in 2013 before the Duffer Brothers may have spoken to Kessler. The Duffer Brothers note they eventually changed the setting from Montauk to the fictional setting of Hawkins, Indiana for both creative and practical reasons such as being able to film in Atlanta.
It should be noted that in early media reports, attorneys for the Duffer Brothers seemed to outright deny any meeting between the pair and Kessler saying “[t]he Duffer Brothers have neither seen Mr. Kessler’s short film nor discussed any project with him.” In their motion for summary judgement, the Duffers do not seem to confirm or deny the veracity of Kessler’s account, and instead suggest that even if Kessler’s statements are true as to a meeting that his claim should fail anyway. However, the motion does say that the Duffer Brothers did attend the party where Kessler claims to have spoken to them. For purposes of this post, we will assume that the meeting between Kessler and the Duffers did occur.
The Cause of Action- Breach of an Implied Contract
While Kessler claims the Duffers took his ideas and used them to create “Stranger Things,” his lawsuit does not assert a violation of copyright, but instead that the Duffers violated an implied-in-fact contract. In their motion for summary judgement, the Duffers claim that Kessler had in 2016 threatened a lawsuit for misappropriation of copyrighted material, but “went silent” on the issue after Netflix “responded with a letter explaining why[his]
copyright claim was meritless[.]” While Kessler did not bring his threatened copyright action, 18 months later he did bring his current breach of contract claim.
Essentially, Kessler claims that his conversation with the Duffers at the premiere party, which the Duffers characterize as a “cocktail party,” and “in light of… well-established customs and practices of the entertainment industry and on the mutually understood condition and bilateral expectation that Defendants would not disclose, use and/or exploit the Concepts without Plaintiff’s permission and/or without compensating Plaintiff… Defendant’s actions and conduct implied and led Plaintiff to reasonably believe that Defendant’s would not disclose, use, and/or exploit the Concepts without Plaintiff’s permission and/or without compensating Plaintiff.” This type of claim, that someone breached an implied contract about the use of a television show idea, is not uncommon in the entertainment industry, and is based on the idea that it is standard practice to give compensation for the use of pitched ideas.
The Duffers’ Defenses
Given the nature of this claim, the details of the conversation between Kessler and the Duffers, as well as the similarities between Stranger Things and Kessler’s works, become vitally important.
In their motion for summary judgement the Duffers ask for the case to be dismissed on three grounds. First, that their interaction with Kessler did not create an implied contract of any kind and was merely “small talk.” Secondly, that the Duffers independently created Stranger Things, as evidenced by their emails and written materials which predate their alleged meeting with Kessler, and that independent creation is a complete defense to breach of an implied contract. Finally, the Duffers also argue that Kessler’s ideas were not “novel,” and that the court should utilize New York law, which requires the expressed ideas to be novel in breach of implied contract claims, as opposed to California law which does not require novelty.
Quite frankly, all three defenses are convincing. While “customs and practices of the entertainment industry” may imply a contract not to use somebody else’s ideas from a pitch meeting, it is hard to reason that should extend to all exchanges of ideas regardless of context. Kessler claims the Duffer Brothers told him they should all “work together” and asked him what he was “working on,” but even in his version of events he spoke with the Duffers for no more than 15 minutes and he never tried to follow up with them. Kessler suggests the conversation started with discussing the science fiction genre in general, and that for his part he did not know who the Duffer Brothers were. The Duffer Brothers suggest that the alleged conversation, even as Kessler describes it, would have been nothing more than “small talk” at a “cocktail party.” If the Duffer Brothers were as prominent then as they are now, perhaps the analysis would be different, as more powerful players in Hollywood could perhaps more readily coax individuals, intentionally or not, to divulge details about aspirational projects. In fact, to counteract this many movie studios have policies to discard or return unsolicited scripts unopened, in order to head off accusations of idea stealing. However, at the time it seems unlikely that the Duffer Brothers’ alleged statements should have led Kessler to believe that their conversation incorporated the protections of a formal pitch meeting.
While the second defense of independent creation is probably the strongest, it makes sense to quickly look at the third, the novelty requirement defense. The Duffers argue that Kessler’s ideas are either directly inspired by the legends surrounding the Montauk Project, or are simply common narrative devices that arise naturally in connection to these ideas, a sort of scènes à faire defense. The interaction between modern urban legends and conspiracy theories, which at least in part purport to be factual, and copyright law is an intriguing area. However, whether Kessler’s or the Duffer Brothers’ ideas are novel seems more like a question of fact.
The second defense of independent creation seems straightforward and is the Duffers’ best argument. The 2010 emails allegedly show the Duffers were working on ideas related to the Montauk Project and similar to “Stranger Things” at that time. The early pilot-like script from 2013 has a plot which closely tracks many of the plotlines that would eventually be present in the final version of Stranger Things. While Kessler alleges other specific elements of overlap, the Duffers seem to suggest that those elements are not novel and that these writings show that they had independently created many of the major elements of Stranger Things before any alleged meeting with Kessler.
Ultimately, the Duffers’ physical evidence of independent creation likely means that Kessler cannot outright win on his contract claim. While the Duffers’ other arguments are also reasonable, the emails and their early writings help confirm a version of events that suggests that even if a meeting between the Duffer Brothers and Kessler did take place, it would have just been a striking coincidence. It paints a picture, whether factual or not, that at a premiere party at Tribeca Film Festival in 2014, an unknown filmmaker met, largely by chance, a pair of similarly unknown filmmakers and had a brief conversation, and that each party was developing their own similar “Montauk” projects completely independently of the other. It is quite a coincidence to be sure, but stranger things have happened.
Daniel Paxton is a JD candidate, 2020, at NYU School of Law.