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A summary of cases by our Corporate Advisory team for the month of May.
The dramatic cliff-hanger that capped off the sixth season of AMC's The Walking Dead has viewers of the highest rating show on US television clamouring to find out what happens next.1 After a user of the popular web forum The Spoiling Dead Fans promised that they knew the answer, AMC issued a cease and desist letter threatening an action for copyright infringement. This is by no means an isolated incident, as passionate fans of Game of Thrones have experienced similar legal issues after posting their own spoilers.2 This article examines whether the publication of spoilers can be prevented under copyright law.
Aversion to spoilers has been a pervasive part of popular culture. Since it was revealed that Darth Vader was Luke's father in Star Wars and that Bruce Willis was a ghost the whole time in The Sixth Sense, the public at large have been divided into two camps.3 Some want their entertainment unsullied, while others simply cannot wait to find out the next dramatic revelation and seek to sate their curiosity early by way of spoilers. Since its inception, the internet has been a communal space for fans of popular culture to discuss and pick over the minutiae of their favourite TV shows, films or books, and speculate on future developments.4
Against this backdrop, in recent years fans of popular television shows like The Walking Dead and Game of Thrones have dedicated thousands of hours to examining previous scenes, public appearances by actors and photographs from sets to predict future plot arcs.5 As well as these practices, some fans have relied on leaks from sources within productions to disseminate spoilers of upcoming details and even release entire episodes early.6
Season 6 of The Walking Dead ended on a dramatic shot of an arch villain, Negan, killing a major character, though it was filmed so as to obscure the identity of the victim. Since that season finale, fan theories have abounded online, but one particular forum post has attracted the attention of the show's creators. After a user on The Spoiling Dead Fans posted that he knew who was killed from an internal leak and planned to release it on the forum, AMC issued a cease and desist letter arguing that the plot details constituted copyrighted work and a trade secret.7 Stating "if we post our [victim] prediction and we're right, AMC says they will sue us",8 the forum moderators decided against posting the spoiler.
Can spoilers really infringe copyright?
In their cease and desist letter, AMC's lawyers relied on the decision in Twin Peaks Productions Inc v Publications International Ltd9 to argue that publishing a critical plot detail could amount to copyright infringement. While this decision does stand for the proposition that recounting plot details can constitute infringement, the facts are in no way analogous. The defendant in that case had published a book that was a guide to the show Twin Peaks. A portion of this book was dedicated to detailed summaries of the episodes, including direct quotations and paraphrases from the show's teleplay. After it was found the book was a "derivative work based upon the copyrighted work",10 the defendant raised the fair use doctrine as a defence to infringement.
The fair use doctrine in the United States is a four part test and was applied in the following way in this decision:11
What about in Australia?
As is the case in the US, Australian copyright law protects only the expression of an idea, not the idea itself. This makes it similarly unlikely that the disclosure of a single key plot detail will be protected by Australian copyright law. The only similarity between the spoiler and the work is likely to be the idea, not the manner in which it is expressed. This means the spoiler cannot be objectively similar to the copyright work.23 While based on the unique facts and circumstances of each case,24 Australian copyright legislation also requires that a substantial part of the work be copied before finding infringement.25 Australian authority would suggest that publishing a single fact from an upcoming television show would not constitute a substantive part of the copyright subject matter as a whole.26
Note: Originally published in Intellectual Property Law Bulletin, October 2016, Volume 29 No 9.
 R Kessel "AMC's 'The Walking Dead' finishes as TV's Top Series in Key Demo for Fourth Straight Season" (6 April 2016) Variety, http://variety.com/2016/tv/news/amc-the-walking-dead-top-series-in-young-adults-fourth-straight-season-1201749093/.
 M Jaworski "Do these 'Game of Thrones' spoiler videos violate DMCA?" (12 May 2016) The Daily Dot, www.dailydot.com/parsec/game-of-thrones-spoilers-jose-senaris-frikidoctor-hbo-dmca-youtube/
 Star Wars Episode V: The Empire Strikes Back Lucasfilm Ltd 1980 (directed by Irvin Kershner); The Sixth Sense Hollywood Pictures 1999 (directed by M Night Shyamalan).
 Searching for the relevant spoiler in question, "Walking Dead Negan death theory" on YouTube.com returns about 31700 results: www.youtube.com/results?search_query=Walking+Dead+Negan+Death+theory.
 E Bagshaw "Game of Thrones: first four episodes of season five leaked" (12 April 2015) The Sydney Morning Herald, www.smh.com.au/entertainment/tv-and-radio/game-of-thrones-first-four-episodes-of-season-five-leaked-20150412-1mjg22.html.
 An alleged reproduction of the cease and desist letter can be found at www.documentcloud.org/documents/2860902-SpoilingDeadDemandLetter.html.
 A Romano "Walking Dead and Game of Thrones fans say networks are threatening to sue because they're too good at predicting the show" (17 June 2016) Vox, www.vox.com/2016/6/17/11934146/amc-bans-spoilers-walking-dead-game-of-thrones.
 Twin Peaks Productions Inc v Publications International Ltd 996 F 2d 1366 (2nd Cir 1993).
 17 USC § 106 — Exclusive rights in copyrighted works.
 17 USC § 107 — Limitations on exclusive rights: Fair use.
 Salinger v Random House Inc 484 US 890 (1987) cited in above n 9, at .
 Stewart v Abend, 495 US 207 (1990) cited in above n 9, at .
 Harper & Row, Publishers Inc v Nation Enterprises 471 US 539, 566 (1985).
 Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 43 IPR 1, at 22; Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd (2001) 116 FCR 448, at 473–5.
 SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 at 482.
 Copyright Act 1968 (Cth), s 14.
 See Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273; IceTV Pty Ltd v Nine Network Australia Pty Ltd(2009) 239 CLR 458; Lahore's Copyright and Designs at [34,155]–[34,165M].