My latest Cinema Law column for Moviemaker Magazine is out and deals with whether or not to get waivers from background people and passers-by when they walk through your shot. I won't give it all away here (you have to go to the article to hear what I have to say), but I will say this: you probably don't need to be as diligent as I used to be back in my days as a young producer. Head over to Moviemaker Magazine to check it out in full!Read More
And that’s why we have experts testify, isn’t it? Because two reasonable lay persons can come to different conclusions about a thing, and that without expert testimony, the issue would be unresolvable? According to the Rules of Evidence Advisory Committee,”[a]n intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge."Read More
You remember Blurred Lines right? It was the smash hit single of 2013 that simultaneously launched (for being catchy) and destroyed (for being rapey) Robin Thicke's career. Well, I'm here to report that this utterly forgettable pop song has now has earned an inauspicious spot in our culture because of a surprisingly foreboding jury decision that found against Thicke and his co-writers Pharrell Williams and Clifford "T.I." Harris, Jr.Read More
As far as the law is concerned, copying is copying, no matter how noble your intentions.
I'm an artist too, so I get it. We are constantly bombarded by stimuli, so it's hard not to be inspired by those images. And it's even harder to avoid relying on those images when we make our own work. My advice is to try even harder than that. Because, unfortunately, copyright holders (often, but not always, large corporations) are less inclined to care about why you copied them and more inclined to sue you into oblivion if that's what they feel is required to protect their work.
Case in point: last month, a Boston-based company called Autonomie was sued for trademark infringement by Converse for making a sneaker so similar to Converse's iconic Chuck Taylors that it's nearly impossible to tell the two apart (the shoe is actually manufactured by a British company called Ethletic). Here are the shoes side-by-side.
But this isn't just ripping off for the sake of ripping off. Autonomie is all about using eco-friendly materials and fair trade practices so as to produce "high-quality garments at competitive prices to consumers that wish to make purchases with a social and environmental impact without having to sacrifice their own personal style, or break their wallet." That's a pretty good reason, right? Too bad. The law says this is trademark infringement because there's a high likelihood that the two shoes would be confused with each other, thus steering profits away from Converse. In trademark law, this is called "blurring." Autonomie's reasons may be noble, but noble doesn't go very far in court.
Remember the whole Robin Thicke/ Marvin Gaye copyright infringement situation that came up a few months ago? Thicke was so inspired by Gaye's work that he wanted to make a song that sounded like something Gaye himself might have written. The end result was that Thicke's fanboyism got him in a legal tussle with Gaye's family.
The reasons for copying rarely matter from a legal perspective. There are very few mechanisms in the law that allow it, and they only apply in certain situations. Fair use, is the most commonly used exception but the only way to find out if it protects you is to get sued, go through months of litigation and thousands of dollars in legal fees, and find out in court. As far as I'm concerned, getting sued and winning is the same as losing because the amount of time and money required to defend yourself would never be recouped.
Copyright holders don't care what your reasons are. They only care if your work will take money out of their pocket. So don't pay homage. Don't pay tribute. Don't use the copyrighted works of others unless they give you written permission. If they don't give you permission, be creative and find another way to express yourself. Be original always in all ways, because copying someone else, even if your intention is to honor them, is the quickest way to get legally smashed. And instead of making art, you'll be paying off copyright fines.
John F. Kennedy once said that "victory has a thousand fathers, but defeat is an orphan." This is never more true than in the entertainment world, which is why Robin Thicke, Pharrell Williams, and T.I. (aka Clifford Harris Jr.) have decided to sue Marvin Gaye's family and Bridgeport Music in order to deny their parental rights to Blurred Lines.
The Gaye family claims that Blurred Lines ripped off Marvin Gaye's Got To Give It Up, and they're demanding a substantial monetary payout. If they don't get it, they'll sue for copyright infringement. In response to the threat of legal action, Thicke preemptively sued them and is seeking a declaration from the court that Blurred Lines doesn't infringe Got To Give It Up.
Before we go any further, listen to both songs and compare for yourself.
Here's the SFW version of Blurred Lines:
And here's Got To Give It Up:
The lawsuit also contains allegations by Bridgeport Music that Blurred Lines plagiarized Funkadelic's Sexy Ways:
Now I consider myself something of a musical ignoramus, but even I can tell when one thing sounds like another thing. While there are some similarities between the songs, primarily because of the up-tempo beat, I think it's pretty clear that Blurred Lines is a wholly separate entity. Which means no infringement took place because copyright law doesn't protect individual elements of a work when those elements are commonly used in an industry or genre (known in the legal biz as "scènes à faire"). So in the hip-hop/R&B world, where uptempo bass-heavy beats are the norm, that similarity by itself would not be enough to constitute copyright infringement. There would have to be greater similarities between the songs in the lyrics and melody for a court to find some form of plagiarism.
So, if Thicke isn't in danger of losing an infringement case, then why did he sue the Gaye family in such an aggressive fashion, especially after stating in his complaint that he has the "utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies"? Certainly Thicke and his partners aren't content to share the glory with 997 other fathers. Blurred Lines is THE most talked about song of the summer. It's a legitimate phenomenon. Why should they share the substantial revenues they'll accrue with another artist? Even if that artist inspired them to begin with?
But I actually think this lawsuit is less about money than about sending a message. See, Blurred Lines is a real winner, and if Thicke can be bullied into settling out of court for several hundred thousand dollars in order to avoid a long and costly trial... well that's a pretty easy way to make a few bucks. Sadly, this type of thing isn't uncommon in the entertainment world. In fact, it's downright mundane.
"Your hit song/TV show/movie has something vaguely in common with my lesser known song/TV show/movie and if you don't pay me, I'll tie you up in litigation for years."
It's a very common tale. My guess is that Thicke decided to take the fight to the Gaye family to show that he can't be bullied. Will this type of preemptive lawsuit work or will a judge dismiss it and basically tell Thicke to wait until he gets sued? I have no reason to believe it won't have the desired effect. If it does, I think you'll see a lot more of these preemptive lawsuits. If it doesn't, the moral of the story will remain the same: you can't be a hit without people bleeding you for everything you're worth.