Gane v The Walt Disney Company [2026] QDC 34 | Case summary

District Court of Queensland|2026-03-19|Before: Gray J

[2] In 2021, Ms Gane self-published an electronic copy of a 4,000-word novella called "The Michelangelo dilemma: secrets of Renaissance time travellers" ("e-book"). It is available for sale online via Amazon's websites. The synopsis of the e-book on Amazon.com.au is:

Architect-scientist Leonardo Da Vinci discovers, thanks to Archimedes' tomb, a formula for time travel. He leaves it in the octagons of an access barrel vault of the Pantheon, in Rome. Once dead he comes back in time to Michelangelo and reveals to him the time travelling formula also printed with a special tile in the octagons of a vault of the Pantheon. Michelangelo faces his greatest dilemma - after the one of whether or not (as he in fact in the end did) to hide his self-portrait when drawing God in the Sistine chapel - does he follow the Master's footsteps or not? He decides - given the potential for trouble in case of misuse of the discovery/the formula, for instance in case of war - to burn all evidence of the formula Leonardo had given him and chisel away its calculations from the Ritonda/Pantheon's vault's octagons.

Of course, if Borromini was buried, according to his will, in the tomb of his best friend (a friendship that had lasted many years), but didn't want to be named on it, was it in fear of a Saltarelli affair bis for his friend's memory or more so because he didn't want to leave any traces of Leonardo's time-travel secret formula?

[3] In 2023, The Disney Group released a final film instalment of the well-known Indiana Jones franchise called "Indiana Jones and the Dial of Destiny" ("film").

[4] The defendant, The Walt Disney Company (Australia) Pty Ltd (Disney Australia), is part of the global Disney network. The defendant imported, distributed and sold the film in Australia.

[5] The issue for determination in the primary proceeding is whether the film infringes the copyright subsisting in the e-book.

[6] The original proceeding was commenced by way of claim and statement of claim.

[7] Ms Gane alleges copyright subsists in the e-book as a literary work and that she is the author and owner of that copyright. Ms Gane asserts that the defendant has infringed the copyright subsisting in the e-book by reproducing, or authorising the reproduction, of a substantial part of the literary work in the script/screenplay of the film and/or in the film itself. There are other allegations of conduct that may amount to copyright infringement, but they are not relevant to this preliminary separate question.

[8] In the amended statement of claim, Ms Gane particularises situations, events and scenes which she alleges appear in the e-book and the impugned film.

[9] Ms Gane claims declarations and damages for the alleged infringements.

[10] The defendant admits the e-book is a literary work, but at this stage of the proceedings does not admit it was created by Ms Gane. These are issues that need to be aired if the matter proceeds to trial.

[11] In relation to the allegations of copyright infringement, the defendant denies engaging in any infringing conduct on the grounds that:

(a) there is no objective similarity between any substantial part of the e-book and any part of the film; and

(b) the features particularised by Ms Gane are mere ideas or concepts and not expressions in a material form in which copyright subsists.

[12] Issues relating to allegations of the defendant's access to the e-book and other matters are not to be determined for the purpose of this application.

[13] The defendant applied for summary judgment pursuant to rule 293 of the Uniform Civil Procedure Rules (UCPR). The defendant submitted that Ms Gane's claim should be dismissed.[1]

[14] Rule 293 of the UCPR states:

(1) defendant may, at any time after filing a notice of intention to defend, apply to the court under this part for judgment against a plaintiff.

(a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff's claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.

[15] To succeed on a summary judgment application, the court must be satisfied that Ms Gane has no real prospect of succeeding on the claim and that there is no need for a trial.[2] To succeed in defending against a summary judgment application, Ms Gane needs only establish there is a triable issue.

[16] To make an order for summary judgment, it must be very clear that there is no reasonable cause of action: Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, at 91.

[17] If there is any significant issue as to a material fact, summary judgment is not appropriate.

[18] A finding that the defendant has not reproduced a substantial part of the e-book means that the court is satisfied Ms Gane has no real prospect of succeeding on this part of the claim.

[19] In addition to the summary judgment application, there is also an application by Ms Gane for what is known as a Sabre order requiring the production of documents from a third party (namely Disney Australia's parent company). It was agreed that the parties would address me on the Sabre order application following the delivery of this judgment.

[20] The defendant submitted that Ms Gane has no reasonable prospect of her claims succeeding on the grounds that:[3]

(i) [there is a] lack of any sufficient resemblance between any passages in the e-book and any part of the film; and

(ii) Ms Gane's case in reality involves nothing more than identification of alleged plot points (being a selection of disparate and isolated matters not forming any real resemblance to the story embodied in the film) that when analysed rely on ideas or concepts only.

[21] The defendant denies any reproduction in a material form of a substantial part of the e-book. The defendant submitted that there is no objective similarity between the e-book and the film.

[22] For the purpose of this application, it is accepted that copyright subsists in the e-book as per the requirements of section 32 of the Copyright Act 1968 (Cth) (the Act).

[23] The parties have determined that issues surrounding copyright ownership, publication and access to the e-book are not matters that need to be determined for the purpose of this summary judgment application.

[24] Ms Gane submitted that a Jones v Dunkel[4] inference could be drawn in favour of dismissing the defendant's application because the defendant called no evidence regarding the independent creation of the film. Ms Gane submitted that the inference is that the uncalled evidence would not have assisted the defendant.

[25] That submission misunderstands the nature of this application. This Court was not asked to consider originality and authorship of either work. The parties agreed that the issue before the Court was simply one of objective similarity. These matters were addressed by the previous judge who had the management of the matter. It was also agreed that issues concerning the discovery of documents from either the defendant or the parent company need not be addressed in advance of this application. Even if it is assumed there was access to the material, there was no submission that that finding would automatically lead to a conclusion of copying.

[26] The e-book is a literary work for the purpose of the Act (s 10).

[27] Section 31(1) of the Act gives copyright owners of literary works exclusive rights to engage in certain acts. Section 31(1)(a)(i)-(vii) of the Act provides:

(1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

(a) in the case of a literary...work, to do all or any of the following acts:

(vii) to do, in relation to a work that is an adaptation of the first‑mentioned work, any of the acts specified in relation to the first‑mentioned work in subparagraphs (i) to (iv), inclusive

[28] Here, we are concerned with the right to reproduce the work in a material form.

[29] Infringement of a literary work is addressed in section 36(1) of the Act, which provides:

Subject to this Act, the copyright in a literary...work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright. [emphasis added]

[30] It is not in dispute that Ms Gane did not authorise the reproduction of the e-book.

[31] To be successful in a claim of infringement, the film must be a reproduction of the e-book in material form.

[32] Material form is defined in section 10 of the Act to mean:

material form, in relation to a work or an adaptation of a work, includes any form (whether visible or not) of storage of the work or adaptation, or a substantial part of the work or adaptation, (whether or not the work or adaptation, or a substantial part of the work or adaptation, can be reproduced).

[33] By the operation of section 14(1)(a) of the Act, a reference to reproducing a work includes reproducing a substantial part of that work. A "substantial part" of the work must be reproduced in order to constitute an infringement of the work.

[34] The meaning of "reproduction" is not defined in the Act.

[35] A literary work is deemed to have been reproduced in a material form if a cinematograph film is made of the work.[5]

[36] Long-standing authorities establish that to "reproduce" a work essentially means "to copy" - Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 at 276 (Ladbroke).

(a) there must be a sufficient degree of objective similarity between the copyright work and the allegedly infringing work; and

(b) the infringing work must be derived directly or indirectly from the copyright work. i.e. there must be some causal connection between the two works: S. W. Hart & Co. Pty Ltd v Edwards Hot Water Systems [1985] HCA 59; (1985) 159 CLR 466 at 472. [6]

[38] As referred to above, in this summary judgment application, the Court is not concerned with determining whether there is a causal connection between the two works.[7] I am only concerned with the works' objective similarity, or lack thereof.

[39] The leading case in Australia on the concept of objective similarity is the High Court's decision in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] HCA 14; (2009) 239 CLR 458 (IceTV). In IceTV, the High Court addressed the concept of originality in the context of infringement and the determination of what is a substantial part. The High Court drew a distinction between the concept of 'originality' in the context of subsistence of copyright in a work and 'originality' in the context of infringement.

(a) in an assessment of whether a substantial part of a literary work has been reproduced, not only is the extent of what is copied relevant, "the quality of what is copied is critical".[8]

(b) "a factor critical to the assessment of the quality of what is copied is the "originality" of the part which is copied". [9]

[41] Only the original part of a work will be protected.[10] "Originality", in terms of independent creation, was not addressed by the parties in this application. It has had to be assumed that all of the e-book originated with Ms Gane.[11] Issues of originality with respect to the elements relied upon by Ms Gane (if notorious facts of which ordinary persons are presumed to be aware) are matters of which the Court can take judicial notice.[12]

[42] Ms Gane must show that there is a sufficient degree of "objective similarity" between the e-book and the film.[13]

[43] The entire copyright work of Ms Gane needs to be considered in order to ascertain whether what has been taken constitutes a substantial part.[14]

[44] Whether a person has reproduced a substantial part of a work "depends much more on the quality than on the quantity of what he has taken".[15] However, if a large quantity of material has been copied, this will assist in a determination that a substantial reproduction has occurred. One must examine the importance and originality of the alleged substantial part in relation to the work as a whole.[16] It is only the expression of an idea that is protected by copyright, not the idea itself.[17]

[45] The leading Australian authority on the assessment of objective similarity between a novel and a film is Zeccola v Universal City Studios Inc [1982] FCA 271; (1982) 67 FLR 225 (Zeccola). At first instance, Gray J noted that:[18]

"Ultimately the matter comes down to the subjective impression of the Judge who makes the comparison"

[46] It is now accepted that the test is objective.[19] Whether there has been a reproduction is assessed objectively and "is a question of fact and degree depending on the circumstances of each case".[20]

[47] It should be noted that the assessment in Zeccola was made in the context of an application for an injunction. In Zeccola, at first instance, Gray J drew an inference of copying because the film in question portrayed many of the incidents and characters in the copyright work.

[48] On appeal, the Court of Appeal identified in Zeccola that an assessment of infringement in the film was not to be achieved by excluding stock scenes and banal events or drawing fine distinctions. The Court held that these matters were to be considered:[21]

"...as part of a process of forming an overall impression as to the originality of the respondent's novel, screenplay and film, the originality of the appellants' film, the extent of similarity or dissimilarity and whether or not there was copying"

[49] Ms Gane submitted that the film was a reproduction of her e-book and portrayed many of the incidents.

[50] It is not contended that there is any literal copying. Rather, Ms Gane alleges the copying of a "combination of ...situations, events and scenes" constitutes the unauthorised conduct. The situations, events and scenes said to constitute the unauthorised conduct are set out in Annexure A.

(a) when considering objective similarity, the whole of the alleged infringing work needs to be considered;

(b) it is impermissible to alienate discrete scenes or events only (relying on Zeccola[23]); and

(c) ideas, themes, and commonplace elements are not protected.

(a) the correct test for infringement is not whether the whole of the film/script resembles the e‑book, but whether a substantial part of the copyright work (the e‑book) has been reproduced in the impugned film and script;

(b) a substantial part need not form a substantial part of the infringing work;[25] and

(c) whether a substantial part has been taken depends on the qualitative, not quantitative assessment

[53] Ms Gane is correct that the assessment is whether a substantial part of the e-book has been reproduced. However, Ms Gane is not contending for a literal copying of her work. She is contending that the combination of elements in her e-book has been reproduced throughout the film. During the hearing, Ms Gane accepted that, to identify the "thread or storyline" running through the film, there is no way to assess this claim other than by considering the entirety of the film.[26]

[54] The Court was provided with a DVD of the film, a copy of the e-book, and a copy of the film script.

[55] The parties also provided a schedule which contained:

(a) Ms Gane's description of the alleged part of the e-book which had been copied and the associated time-stamp reference in the film; and

(b) a summary of each party's contentions in relation to each allegation.

[56] During the hearing, parts of the film were played, and I was taken to some of the identified time stamps in the schedule which required further explanation or submission. I have read the e-book and watched the film in its entirety.

The Combination of elements that are said to constitute the substantive/qualitative part of the e-book

[57] Ms Gane identifies items that she says, in combination, constitute the substantive/qualitative part of her e-book and which have been reproduced in the film.

[58] Those items are described by Ms Gane as follows:

(a) Archimedes' Tomb scenario

(b) Time travel linked to Archimedes' Tomb

(c) Archimedes as a source of time travel

(d) Roman Centurion / ancient encounter

(e) Syracuse location

(f) Time‑travel device: tile vs dial

(g) Male protagonist comparison (Michelangelo vs Indiana Jones)

(h) Misuse of time travel in war

(i) Vortices/fissures as time‑travel gateways

(j) Octagonal tile cemented in a niche

(k) Neglected, encrusted metal artefact

(l) Final dilemma: reveal or conceal time travel

(m) Concealment is not absolute

(a) Ms Gane is a "qualified" person, i.e. she appears to be an Australian citizen or at least resident in Australia (s 32(4) of the Act);

(b) copyright subsists in the e-book as an original literary work;[27] and

(c) Ms Gane is the owner of copyright in the e-book as the "author" of a literary work under s 35(2) of the Act.

[60] Only the "original" part of a work will be protected.[28] I have assumed the e-book is an "original" work i.e. it originates with Ms Gane and is the product of her labour, skill, and judgment.

[61] Therefore, it is assumed Ms Gane has standing to sue the defendant for infringement of copyright (if any has occurred).

Does the film constitute a substantial reproduction of Ms Gane's e-book?

[62] If there is no reproduction of a substantial part of the e-book in the film, the conclusion must be that there was no infringement of copyright in the e-book.

[63] This is not the first time an author of a literary work has commenced proceedings against a filmmaker/producer claiming copyright infringement. The vast majority of novel-to-film infringement cases are brought in the United States of America, as this is where the major motion picture companies are located.

[64] Novel-to-film cases are different to novel-to-novel cases. It can be more challenging to assess "quantity", and there can be hotly contested arguments about the "quality" of the work taken. What is meant by "substantial" is, to a degree, ambiguous and is "influenced by its context".[29]

[65] The following cases demonstrate the features that are considered in determining substantial similarity in the context of novel-to-film copyright disputes.

(a) The distinction between ideas and the expression of ideas - often referred to as the idea-expression dichotomy. This was explained by Baird J in Duncan v Australian Broadcasting Corporation [2023] FedCFamC2G 993; (2023) 178 IPR 151:

[175]...an important consideration in relation to the issue of sufficient objective similarity is the 'well known, if often difficult, distinction between ideas or concepts on the one hand and the form of expression or manifestation of them on the other': Eagle Homes per Lindgren J at [95]. It is a trite saying that there is no copyright in ideas or concepts. Rather, as the authorities make clear, copyright in a work or other subject matter subsists in 'the particular working out or expression of the idea or theme'.

(b) General plot ideas, shared themes, stock characters/common tropes, and scènes à faire[30] are generally not protected by copyright. Ideas, such as a film idea, are not protected by copyright; it is the expression of those ideas that is protected. That is not to say plots are never protected.[31]

(c) There is a need to consider plot structure and sequence, incidents or scenes, character information - such as distinctive traits or "backstory", themes, and dialogue.

(d) A bare storyline (i.e. a skeleton plot with no embellishment) is unlikely to attract copyright. An example of a basic storyline is a mad sea captain endangering his crew because of his insanity. This storyline was the subject of a court case, Golding v. R.K.O. Pictures, Inc[32] (Golding). In Golding, the Court held that the "basic dramatic core" between a stage play and a motion picture film was substantially similar because the dramatic core was the most important feature of the work. Other decisions have held that a bare plot line is not copyrightable.[33] The meaning of dramatic core is not defined. It is a matter of fact and degree.

[67] The leading authority in Australia regarding whether a film can infringe copyright in a novel by copying its plot structure and sequence of events is Zeccola.

[68] The plaintiffs were the makers and the author of "Jaws", a story about a great white shark that terrorises a beach community. The defendant was a producer of a film called "Great White". The plaintiffs commenced copyright infringement proceedings and sought an interlocutory injunction to restrain the showing of the defendant's film.

[69] Although the Court at first instance confirmed that a central theme or idea was not protected, "however original it may be",[34] the Court found dramatic structure and sequence of incidents had been taken by the defendant and that this, prima facie, constituted a reproduction of the plaintiffs' works.

[70] On appeal, Lockhart and Fitzgerald JJ, in a joint judgment, said:[35]

In general, there is no copyright in the central idea or theme of a story or play, however original it may be; copyright subsists in the combination of situations, events and scenes which constitute the particular working out or expression of the idea or theme. If these are totally different the taking of the idea or theme does not constitute an infringement of copyright.

Of necessity certain events, incidents or characters are found in many books and plays. Originality, when dealing with incidents and characters familiar in life or fiction, lies in the association, grouping and arrangement of those incidents and characters in such a manner that presents a new concept or novel arrangement of those events and characters. We accept that where a story is written based on various incidents which in themselves are commonplace a claim for copyright must be confined closely to the story which has been composed by the author. Another author who materially varies the incidents and characters and materially changes the story is not an infringer of the copyright. If a literary or dramatic work is not wholly original there is no copyright in the unoriginal part so as to prevent its use. Additional factors may call for consideration where the alleged infringement is by cinematograph film.

[71] The decision under appeal in Zeccola was an interlocutory decision. The Court at first instance only needed to be satisfied, on a prima facie basis, that the film was an infringing work. The evidentiary threshold in Zeccola is lower than in a final hearing. The Court specifically noted its findings were made in the context of provisional relief only.

[72] The Court concluded its finding was based on a consideration of the combination of the principal situations, singular events and basic characters.

[73] At first instance, Gray J cited Sargant J in Corelli v. Gray (1913) 29 TLR 570[36] who discussed when a combination of features may be considered original albeit their ordinariness:[37]

"...the combination of these ordinary materials may nevertheless be original, and when such a combination has arrived at a certain degree of complexity it becomes practically impossible that it should be arrived at independently by a second individual. In my judgment the similarities and coincidences in this case are such as, when taken in combination, to be entirely inexplicable as a result of mere chance coincidence. "

[74] Gray J said he did not find previous decisions of much assistance, as each matter turns on its own facts. He said:[38]

The basic question of fact remains. Was the film substantially copied from Jaws? Clearly enough a question of degree is involved. A mere similarity is not enough.

Ultimately the matter comes down to the subjective impression of the Judge who makes the comparison. Are the two films merely similar or is one a copy of the other?

[75] In Zeccola, the parties drew the Court's attention to the similarities and differences, as has been done here. It was accepted by the parties here that the schedule was provided as part of the parties' submissions. It is not evidence.

[76] Gray J found the film "Great White" was a substantial copy of "Jaws" because:[39]

Practically all the principal situations and characters in Jaws are faithfully reproduced. This would not be so striking if the submissions and characters were commonplace. But a fact situation in which a fish terrorises a land-based community is, in my opinion, singular and original. The mere reproduction of that situation alone would give rise to suspicion. Then one observes that the same stretch of coastline in the same country is reproduced as the location. Why not the Dalmatian coast or the Mediterranean coast, one might rhetorically ask. Then, one after the other, easily recognisable characters appear and recognisable incidents occur.

[77] Although the genre of a shark terrorising a beach community was too general and incapable of attracting protection on its own, the Court found:[40]

(a) the order of the victims was identical;

(b) the plot line of pressure placed on the authorities to keep beaches open was "strikingly similar";

(c) the marine biologist character was very similar;

(d) the shark hunter had very similar personality traits and features; and

(e) the final sequence was almost identical.

[78] Zeccola turned on its own facts. In Zeccola, the copying was blatant and striking.[41]

[79] In Nine Films & Television Pty Ltd v Ninox Television Limited [2005] FCA 1404; 67 IPR 46 (Nine Films), Ninox claimed Nine had infringed its copyright in the format of a television program called Dream Home shown in New Zealand, by producing and screening the television program The Block. The Court found the similarities were in the game show format and the renovation activities. The Court considered the context in which the claimed similarities and differences arose and in which the characters and plot developed. The context there was in relation to the whole series, not just one or two episodes. The Court weighed the similarities and differences between the programs in light of each series as a whole. The Court referred to Glyn v Weston Feature Film Co [1916] 1 Ch 261 at 269, where Younger J said:

"... if, in considering whether such a literary work as a novel has been infringed by such a thing as a cinematograph film, the true enquiry is, ...whether, keeping in view the idea and general effect created by a perusal of the novel, such a degree of similarity is attained as would lead one to say that the film is a reproduction of incidents described in the novel or of a substantial part thereof..."

[91] ...Having regard to technique, context, character of contestants, mood, music, image, style and basic theme content, the two productions and formats are a long way apart and are quite different in their essential features.

[81] In Kelly Van v. James Cameron / 20th Century Fox[42], Van alleged that the 2009 film "Avatar" reproduced elements from her 2003 self-published book, "Sheila the Warrior: The Damned". The defendants filed a successful application for summary judgment. The Court held there was no substantial similarity (in the plot, characters, and dialogue) between the works. Any overlaps were limited to abstract ideas like alien worlds and environmental themes.

[82] In another case, Funky Films v Time Warner Entertainment Co[43], the appellants were the creators of the screenplay "The Funk Parlor" which was about a small, family-run funeral parlour in Connecticut. A copy of the screenplay was given to a programming executive at HBO. Following this, an assistant of the HBO executive solicited another person to develop the television miniseries "Six Feet Under" for HBO. The appellants commenced proceedings against Time Warner for copyright infringement. Time Warner successfully brought a summary judgment application on the grounds that the works lacked sufficient similarity. The Court also denied a request for additional discovery. The decision was appealed.

[83] I will not go into the details of the plot and storyline; suffice it to say, the Court considered the setting, plot, characters, theme, mood, pace, dialogue, and sequence of events in the works. The Court found the similarities in the works were at an abstract level only.

[84] In Williams v. Crichton, 860 F. Supp. 158 (S.D. N.Y., 1994) (Jurassic Park),[44] there was an application for summary judgment in an alleged copyright infringement against Michael Crichton and others, claiming that the Jurassic Park novel and movie infringed upon Williams' earlier copyrighted works. The Court found that there were certain similarities between the works' settings, because these all "flow naturally from the basic plot premises" of a dinosaur zoo.

[85] In relation to assertions about character similarity, the Court held that even if the plaintiff's character descriptions were right, the characters of the works fell far short of the substantial similarity required to preserve a factual question for trial. The Court stated:[45]

Both boys are presented as dinosaur enthusiasts; in both works, the respective guides are knowledgeable about dinosaurs. Both boys are eager to talk about dinosaurs with the respective experts, and Dr. Grant's movie portrayal, Plaintiff asserts, dovetails with that of Jake DuMel: both are intelligent, rugged adventurers who are friendly and somewhat paternalistic toward the children.

The children in both works are brother and sister, and in both works the children camp out with their guide on the park island. They are together when threatened by dangerous dinosaurs, and at the end of both stories, both parties arrive safely at the helicopter pad as a result of the combined efforts of the children and their accompanying adult.

[86] The Court held "it is apparent that Jurassic Park presents a universe of characters quantitatively far richer than anything attempted in any of the Dinosaur World stories".[46]

[87] In Jurassic Park, the plaintiff also claimed that the sequence of events between his four works and the Jurassic Park movie and novel is "strikingly similar." The Court found the similarities were not enough to warrant a finding of substantial similarity between the works. The Court also noted that parties' lists of similarities are often subjective and unreliable.[47]

[88] During the hearing, I was taken to the passages of the film which are said to constitute the reproduction of a substantial part of the e-book. Having reviewed the film and the book in their entirety, I find that the film does not resemble the e-book.

[89] No one owns the copyright in a basic story idea. The question is whether the themes and plots necessarily follow? Are the themes common, is the sequence and order a matter of natural progression? Are the elements relied upon scènes à faire? Do the scenes flow from a basic plot premise? Are the dialogues, characters, scenes, and settings similar enough?

[90] It is the expression of the ideas that is protected by copyright. Here, the details in the e-book are limited compared to the richness of the film's content. The simple identification of a male protagonist, a time-travel device, or both is not sufficient to attract copyright protection. Ms Gane acknowledged this and instead relied on the combination of those features. Even relying on a combination of features or elements does not necessarily elevate what is a commonplace, or abstract idea, into protectable copyright subject matter.

[91] Here, I find the plot line, the characters, and the dialogue are different.

[92] Reading the list of features in isolation may give a false impression that there are significant plot similarities. But when one compares the works, it is clear that there are few.

[93] Ms Gane identified the following qualitative and quantitative elements of the e‑book:

The link between Archimedes, his tomb, and time travel, mathematical formulas attributed to Archimedes travel as a central theme and including travel to ancient Rome and the presence of centurions.
Significant geographic location of Syracuse
A geometrically shaped device for time travel
The main protagonist being a single, middle-aged, male
The main protagonist grappling with whether to keep the time travel formula/device secret and hidden
A moral dilemma surrounding the use of time travel to go back in history especially during wartime

[94] These elements are said to be ideas expressed in material form, not unprotectable abstract ideas.

[95] Ms Gane argues that her claim concerns the material expression of multiple ideas woven together.

[96] In the e-book, a university student at La Sapienza in Rome, Federica, finds documents and an octagonal tile in the university archives. She enlists Alfio, her attractive Sicilian assistant, who later becomes her lover, to aid her in understanding the tile. Alfio teaches Federica about architectural elements - a cylinder, a semi-sphere, and a cone, and connections to Archimedes' tomb and mathematical problems are made.

[97] There is a link to Leonardo da Vinci, inspired by a vision of a Roman centurion providing knowledge about vortices of air and water, encoding a time-travel formula within the intricate geometry of octagonal tiles in the Pantheon. Leonardo tells "Monna Lisa" about this and then travels back in time to tell Michelangelo. Federica considers how the shapes of architectural structures such as a ritonda relate to Leonardo da Vinci's studies for time travel.

[98] Michelangelo, upon learning about the time-travel formula and its location in the Pantheon then faces his greatest dilemma whether to preserve or destroy the formula. Michelangelo destroys some of the decorations in the Pantheon and burns Leonardo's written version - but unknowingly leaves enough clues for others to find.

[99] Two others, Palladio and Borromini independently decoded fragments of Leonardo's formula - and like Michelangelo, determine not to share what they find.

[100] Another expert, Signor Carlini, tries to steal and sell the original tile and manuscript on the black market but is found dead at Rome's Leonardo da Vinci Airport. The artifacts vanish permanently.

[101] Federica, having uncovered all of this, faces her own version of the same dilemma and - like Michelangelo centuries before - omits her discoveries from her thesis. The secret is lost again.

[102] The protagonist in the film is Indiana Jones. Indiana is a very well-known fictional character, being an archaeology professor by profession but who engages in dramatic expeditions involving archaeological history and artifacts.

[103] In the film, Indiana Jones, assisted by his niece (Helena) and her young friend (Teddy), race against time against an old Nazi collaborator, Voller, to retrieve an artifact known as the Archimedes Dial, which is part of the Antikythera mechanism.[48] The artifact is said to be able to change history by enabling you to go back in time. Voller is seeking the Dial in order to travel back in time to World War II and change the course of history (to ensure Germany is the victor).

[104] Along the way, the trio encounter characters and events that seek to delay/hinder their ability to get to the artifact in time.

(a) The film begins in World War II with Voller, a Nazi scientist, seeking the artifact. Indiana Jones escapes from confinement by German soldiers in a castle while trying to retrieve the "Lance of Longinus". Indiana escapes on a train filled with stolen valuables and antiques and in between hiding, disguising himself and fighting, becomes aware that Voller has found half of a device built by Archimedes (the Antikythera mechanism - presumably named after the real "Antikythera mechanism" discovered in 1901 in a shipwreck off the coast of the Greek Island Antikythera) that can enable travel through time. Indiana Jones hinders the Nazi in this task with the help of a friend. They escape on the top of a moving train and make off through the Alps with the Antikythera on a motorcycle. The friend ends up keeping half of the artifact himself.

(b) Then, in 1969, we see Indiana as a university professor. Helena is introduced and seeks Indiana's assistance to retrieve the other half of the artifact. It turns out the Nazi scientist is on a similar quest. They retrieve a part of the Antikythera from a university archive but are attacked by accomplices of Dr Voller.

(c) Indiana, Helena and Teddy embark on adventures and "scrapes" trying to outrun the Nazi scientist and his henchmen. At one stage, Indiana Jones and Helena escaped on horseback through NYC subway tunnels. Indiana escapes from Voller via a rooftop in Tangier. Indiana Jones had travelled to Tangier to disrupt an attempted sale of the Antikythera part by Helena. Voller and his henchmen is always on their tail.

(d) A dive to an ancient shipwreck to find the second half of the dial takes place. Again, the group is confronted by Voller. A boat chase ensues. The heroes get away.

(e) The climax occurs at Archimedes' tomb in Sicily, where the Nazi scientist catches up with Indiana just as he finds the other half of the artifact. Shots are fired, and Teddy and Helena escape. The Nazi scientist, now in possession of both halves of the dial, attempts to use the dial to go back to the time of WWII.

(f) Indiana Jones is imprisoned on a military aircraft with Voller. The plane is flown into a fissure in the sky, identified using the Antikythera. Voller explains that he wants to travel to Germany in 1939 to correct Hitler's errors.

(g) Unfortunately for him, his use of the dial sends him and Indiana to ancient Rome during the Siege of Syracuse, when Archimedes is present. Archimedes reveals that the Antikythera was designed to bring allies to Syracuse in 214 BC to lift the siege. The Nazi scientist and his team die. Indiana wants to stay in ancient Rome, but ultimately, Helena brings him back to the present day by knocking him out.

(h) Conclusion - Indiana Jones wakes up in his apartment, with the camera revealing the Antikythera on a nightstand in the background. Indiana is reunited with his love interest from the first film, Marion (played by Karen Allen), and the film ends showing Indiana "hanging up his hat".

[106] The e-book contains the following scenes which are not present in the film:

(a) Federica at university archives;

(b) Description of a process involving Renaissance figures;

(c) Leonardo being visited in a dream by a Roman centurion;

(d) Leonardo leaving a time travel formula on octagons in the vault of the "Ritonda" in the "Pantheon';

(e) Leonardo telling Monna Lisa about the formula;

(f) Time-travel sequence - Leonardo goes back in time and sees Michelangelo;

(g) Thought processes of various Renaissance figures;

(h) Michelangelo burning the formula but carving clues to the formula in the octagonal tile, before disposing of the tile;

(i) Federica and the mathematical problems; and

(j) Federica discussing her thesis (inferentially at her university) - and omitting any detail that might reveal clues that would lead to the same discovery she made.

[107] The film includes the following locations and scenes in this order:

(a) 1944 - Nazi train in the French Alps;

(b) 1969 - Indiana's apartment in New York City, university college, Apollo 11 ticker tape parade, New York subway;

(c) Indiana's college office;

(d) Tangier, Morocco;

(e) Aegean Sea / Greece - Dive to an ancient shipwreck;

(f) Sicily, Italy;

(g) Travel to Syracuse ;

(h) Various tombs in Sicily;

(i) Archimedes Tomb;

(j) Plane - on which Voller attempts to use the dial to go back to 1939 Germany, but instead time-travels to 212BCE and the Roman Syracuse scene;

(k) Plane containing Helena crashes through the fissure of time into Syracuse;

(l) Meeting with Archimedes;

(m) Voller's plane crashed, and Voller died and remained in 212BCE; and

(n) Helena and Indiana return to 1969 New York and Indiana's apartment.

[108] The detailed sequence of events in the two works is different. The e-book begins with an architectural student, Federica coming across some historical documents and an octagonal tile while studying. Whereas the film beings with a flashback to 1944.

(a) Leonardo discovering time travel;

(b) the Renaissance figures Leonardo and Michelangelo; or

(c) the Ritonda or Pantheon;

[110] I agree with the defendant that the following, which appears in the film is not found in the e-book:

(a) the inventor of time-travel in the film is Archimedes. The personalities of Leonardo (who discovers a method of time travel), and Michelangelo and other renaissance figures, which are the subject of most of the e-book do not appear anywhere in the film;

(b) Archimedes does not appear or is not described in any way in the e-book, and the name is only referred to in identifying a location (his tomb) where Leonardo makes and leaves an engraving. In the film, Indiana Jones and his companions meet Archimedes in ancient Greece, and it transpires that Archimedes designed a time-travel device for the purpose of summoning travellers from the future to ancient Greece. This explains the whole purpose of the time-travel device, and why it was intended to be found and used - indeed the modern watch found on Archimedes' skeleton reveals the time travel must have occurred;

(c) the "Archimedes tomb" referred to in the e-book is variously described as being either the Ritonda or Pantheon, being well-known classical buildings in Rome. The "Archimedes tomb" shown in the film is instead a hazardous natural cave in Greece;

(d) the only person who time-travels in the e-book is Leonardo, who is described as having time-travelled on a single occasion to speak with Michelangelo (in a passage described in a sentence). In the film, the sole time-travel involves two aircraft with all their passengers, including Indiana Jones and his companions flying into a siege in ancient Greece (in Syracuse) and eventually meeting Archimedes;

(e) the location Syracuse is only mentioned is one sentence in passing in the e-book. Nothing occurs there and nothing relevant is described as having occurred there; and

(f) in the e-book, the "octagonal tile" is not a device but something on which clues are written that, together with various papers, leads to discovery of a time-travel method through study of mathematics. In the film, the Antikythera is an ancient device, that must be assembled from parts scattered in different places from the ancient history and in order to time-travel.

[111] The literary work is concerned with finding an octagonal tile cemented to a wall in a niche. The segment of the film I was taken to did not include an octagonal device.

[112] Ms Gane's argument is that there is a commonality between the e-book and the film in that what can be seen is a device of geometric shape, which is capable of time travel.

[113] A theme of the film is that both halves of the device are required in order to time-travel. That theme is not in the e-book. The e-book's device is whole.

[114] The literary work refers to natural occurrences and the doorway to time travel, referred to as "vortexes of air and water". In the film, time travel occurs through fissures. The Macquarie Dictionary defined a "vortex" as a "whirling movement or mass" and a "fissure" as "a narrow opening produced by cleavage or separation of parts". The idea of time travel is expressed differently in each work.

[115] Ms Gane accepted that the protectable copyright cannot be just a theme. It is only the expression of the theme in material form which is capable of copyright protection.

[116] These differences demonstrate a material variation between any similarities which may exist.

[117] The works differ in their detail of events, the character names, dialogue.

[118] The similarities are at a high level "idea" only, they are general plot ideas which are the common property of all.

[119] There is no character resemblance or similarity - a male protagonist is only an abstract concept. There is nothing in the e-book which describes the character of Indiana Jones. Even if it did, the character of Indiana Jones has been developed since the first instalment of "Raiders of the Lost Ark" released in 1981.The characters in the e-book are less developed, in part because of the length of the e-book. There is no meaningful or detailed description or dialogue of any of the characters. Two of the significant characters in the film are the characters played by Phoebe Waller-Bridge (she plays Helena, Indiana Jones' goddaughter) and Ethan Isidore (loveable scallywag and friend of Helena). The theme of a child sidekick can be found in many of the Indiana Jones instalments. These characters are simply not present in the e-book.

[120] The e-book's general theme concerns a time-travel formula and the dilemma faced by those who uncover it: whether to preserve and share it or destroy it for the benefit of all humanity.

[121] In the e-book, the time-travel formula is discovered by Leonardo da Vinci.

[122] In the film, the Dial of Destiny enables people to enter coordinates to time travel based on Archimedes' theory that there were "fissures in time", or time portals, through which people could travel. There is a paradox at the end of the film in that when Indiana Jones arrives in Rome, he meets Archimedes and shows him the completed dial, which Archimedes had not yet completed and leaves him his wristwatch. By showing him the dial, Archimedes was able to complete the dial.

[123] Some of these themes are present in both works, but how they are considered and dealt with are completely different.

[124] The theme of a protagonist unravelling secrets and mysteries from ancient or Renaissance times, or ancient works carrying immense powers, is not new. Works such as Umberto Eco's Foucault's Pendulum or the Da Vinci Code by Dan Brown, or the Diana Gabaldon book series Outlander come to mind. Scenes of famous landmarks and ancient historic sites as key locations are commonplace in these types of mysteries and adventures.[49] The use of historical or archaeological objects for time travel is an unprotectable idea. The expression of the time-travel device idea in Outlander is that you can travel through time by touching the stones on a specific date. In the film, the idea is expressed as the dial being used to locate fissures based on continental drift calculations. In the e-book, the time travel occurs through a mathematical formula rather than through the device itself. In the e-book, the device or tile contains the formula. Leonardo found the formula through Archimedes' tomb, encoding it in the Pantheon's octagonal vault coffers.

[125] Another common theme is the "love plot" that plays in the wings. Indiana Jones usually has a love affair with his initially unimpressed female adventurer. Here, his first love interest returns at the end of the film in a full circle way. In the e-book, there is the side plot of Federica's love interest. These themes are not protectable. More is required.

[126] Themes of time travel, a time travel device that enables time travel,[50] a dilemma of what to do with the information or item (concerning an item which could be used for good or evil) is not protectable on its own. It is how that theme/idea is expressed. In the film, the expression is found through devices such as Archimedes' Antikythera mechanism, the Nazi scientist's plan to return to WWII to kill Hitler, the paradox of Indiana's wristwatch, and so on. These narrative choices are not found within the e-book.

[127] There is minimal dialogue between characters in the e-book and no correlation to the dialogue in the film.

[128] Ms Gane claims the combination of the following elements is what is protected and reproduced by the film.

[129] Ms Gane alleges the e-book and film centre on Archimedes' Tomb as a key story location. The tomb is located in Syracuse in both works. Ms Gane contends this location is central to the narrative.

[130] The similarity is only at the level of an idea; the tombs in both works are in different locations and depicted differently.

[131] Ms Gane alleges the discovery of time travel in both works is linked to Archimedes tomb through an artefact or mechanism. Ms Gane accepts the artifacts in each work is different.

[132] As already discussed, this is not protectable.

[133] Ms Gane alleges that the time travel arises from Archimedes' calculations in both works. Ms Gane accepts Leonardo da Vinci is not a character in the film but asserts that both works link time travel to Archimedes' mathematical formulas by a protagonist (Leonardo in the e-book, Indiana Jones in the film) through a device (octagonal tile in the e-book, the Antikythera mechanism in the film).

[134] Ms Gane alleges time travel involving Roman Centurions appears in both works. The defendant contends there was no time travel by a Roman centurion in the film and the passages in the e-book describe a tour guide dressed as a Roman centurion and a dream, not time travel.

[135] Ms Gane alleges Syracuse is a key destination in both works. The defendant contends the mere mention of a place name is not a protectable scenario.

[136] In my mind, the use of Syracuse as a location is a scène à faire once Archimedes plays a part. Similarly, the use of Archimedes and mathematical formulas, the reference to Roman centurions. These are all matters in the public arena and part of ancient history. Archimedes was born in Syracuse. There is a reference in Cicero's works of having visited Archimedes tomb in Sicily, although its location is not known. Archimedes' inventions were utilised during the Roman siege in 212BC. He is believed to have been killed by a Roman centurion. These are historical facts and follow from the ideas of time travel linked to Archimedes. It is unsurprising that two works linking time travel to Archimedes contain these features. The selection of Syracuse in this context is not striking. But these features are themes or ideas. The expression of that theme is different in both works.

[137] Ms Gane alleges both works use a geometric metal object (octagonal tile / hexagonal dial) to enable time travel. The defendant contended there is no similarity in parts of the film identified and parts of the e-book regarding the use of a device to time travel.

[138] In the e-book, a time travel formula is found on a tile. Whereas in the film, time-travel only occurs through the use of the device. The tile in the e-book is not actually used as a time-travel device. They are quite different stories.

[139] Nothing happens in the e-book except someone finds it and figures out a time travel formula, but the story portrayed in the film is the device actually being used as a time travel mechanism - albeit most of the film is everyone chasing parts of it through the world.

Male protagonist comparison (Michelangelo vs Indiana Jones)

[140] Ms Gane alleges both works feature a similar male protagonist archetype. The defendant disputes Michelangelo is the protagonist in the e-book and suggests that the female character is the protagonist.

[141] Even if Michelangelo is the protagonist, the defendant submitted he does not resemble Indiana Jones. Ms Gane submits they shares core traits and narrative functions namely male, Caucasian, middle-aged and mature archaeologist, and an intellectual.

[142] It can be accepted that Michelangelo has those characteristics, but even so, to suggest that the character of Indiana Jones (a hero that has been portrayed on screens for 40 years prior to the creation of Ms Gane's e-book) is a reproduction of a substantial part of the e-book is not, in this instance, possible to accept. Some might argue this is one of the most common character types in Western history. These features or traits could describe any number of people and fictional characters.

[143] Ms Gane alleges that both works address the dangers of time travel being misused in war. The defendant submitted that the similarity is only at a high-level idea, with no similarity in expression.

[144] The idea of time travel[51] and the misuse of it in war or the changing of history is not a new theme.[52] It is the way that the theme is developed and expressed that is protected.

[145] Ms Gane alleges both works use natural phenomena (air vortices in the e-book and fissures in the film) to enable time travel. While a similarity exists, the defendant submitted it is only at an abstract idea level.

[146] In the e-book the refers to an "octagonal 'tile' cemented to a wall in a niche space". Ms Gane alleges the film also depicts a hidden geometric object embedded in architecture that unlocks time travel.

[147] The defendant submitted that any alleged reproduction involves an idea only (the concept of time travel device).

[148] Ms Gane alleges that both works feature an ancient, neglected metal object central to time travel. Ms Gane here refers to half of a metal device in the film, which was neglected and heavily encrusted.

[149] The defendant submitted first, that the object found in the shipwreck is a golden disc containing directions, preserved in wax and revealed in pristine condition. It was not the device (it was not the Antikythera), and it was not neglected and heavily encrusted.

[150] In response, Ms Gane submitted that the reference to the shipwreck object was only to demonstrate that it showed where to find the other half of the Antikythera, which was metal and "to some extent 'encrusted'".[53]

[151] I agree with the defendant's submissions that there is also no arguable basis to infer any copying, given the finding in the shipwreck is a reference to the fact that the real "Antikythera mechanism" was discovered in 1901 in a shipwreck off the coast of the Greek island of Antikythera.[54]

[152] Ms Gane alleges the climax of both works comprise the same ethical dilemma about revealing time travel to humanity, and that the film clearly shows Indiana Jones is reluctant to disclose the device, which mirrors the book's central moral conflict.

[153] The defendant submitted that there was no dilemma at the film's end.

[154] Although not clearly spelled out, the film ends with the Antikythera mechanism shown on Indiana Jones' nightstand. What is the viewer to make of this? How does it demonstrate a reluctance to disclose the device? Is not the purpose to leave the viewer wondering if there will be more time-travel adventures in the future?

[155] Even if it was accepted that there was this moral or ethical concern on the part of the protagonist about whether to keep or destroy the time travel device, the expression of that idea in the works bears no similarity. It is expressed in the e-book as follows:

"Michelangelo got the "time-travel' formula given by Leonardo -through time travel (Leonardo came back to him soon after his death). Michelangelo was torn between keeping..."

"the Pantheon and burning its written version - on papyrus from the Nile- too, in doing so denying humanity of the advantages and disadvantages that the discovery could have yielded. Imagine in times of war what it could mean (or maybe even what it has meant, unbeknown to us)! In the end the decision he made was to burn Leonardo's discovery as he believed ..."

"meant- Borromini intends to use it but ultimately buries it with him when he dies and wants nothing written on his tomb so nobody can find him and unearth the secret/Leonardo's time travel formula"

"Saltarelli affair bis for his friend's memory or more so because he didn't want to leave any traces of Leonardo's time-travel secret formula? How was Federica to betray some of the..."

"On a quiet Thursday afternoon Federica discussed her thesis, but decided - like Michelangelo had done centuries earlier - to omit all that she'd learnt, in an attempt to preserve the incredible secret[s] she had uncovered. Furthermore La Sapienza University, understandably..."

[156] There is no replication of any of the above passages in the film. At its highest, there is a mere allusion to whether it is a good idea to keep the Dial of Destiny.

[157] Ms Gane alleges that both works attempt to permanently hide the formula/device, which fails because, although the devices had been hidden or concealed in some way, they were able to be located by others.

[158] The defendant's response was that there is no character in the film who decides to permanently conceal the device. That is correct.

[159] Ms Gane is asking a lot of the reader/viewer. Whether a reader/viewer speculates about this does not constitute copyright infringement. Again, it is an idea or theme.

[160] In 1895 Georges Polti argued that every dramatic work in existence could be reduced to one or a combination of just 36 fundamental dramatic situations. Both the e-book and the film contain many similar themes identified by Polti such as:

Resolving the hidden documents/tile by Federica. Michelangelo's dilemma about whether to destroy Leonardo's knowledge

Gane v The Walt Disney Company

At a glance

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Judgment (281 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)