Copyright in Movie and Painting Styles?
posted by Frank Pasquale
Kelly Osbourne’s recent One Word is directly inspired by the great film Alphaville:
Ms. Osbourne happily acknowledges the resemblance:
“I’m going for something like very ‘Alphaville,’ ” Osbourne told MTV News . . . when she was dreaming up the concept….”Very ’60s, nothing that I thought I’d ever do, like very black-and-white. I’m excited for that. And I’m going to wear a wig!”
To flesh out her idea, Osbourne enlisted director Chris Applebaum to emulate “Alphaville,” Jean-Luc Godard’s classic 1965 avant-garde film. Their take . . . was filmed in black-and-white 35 mm, while Osbourne herself embodied the look of the film’s star, Anna Karina, with sharp bangs and porcelain skin.
I’ve not been able to find out whether Osbourne got a license from the owners of the copyright in Alphaville. I don’t know if she needed one, but hypercautious Hollywood IP lawyers may well have wanted one. Perhaps aware of that legal issue, the Red Hot Chili Peppers appear a little more reticent about discussing the inspiration for their video for Otherside. Though some say its “black-and-white/monochrome Gothic style [is very] similar to Robert Wiene’s The Cabinet of Dr. Caligari,” a Jonathan Dayton stated:
“We did look at Caligari, and we looked at a lot of German Expressionist film. But it was also very important to avoid ‘Caligari.’ It was both inspiration and something to work around, because it has such a strong, specific style, and there have been other videos that have completely ripped it off.”
Taking this from the sublime to the banal (and from the appropriator to the originator), Thomas Kinkade has been translating his painting style into a guide for a movie to be based on his vision:
Whenever possible utilize sunset, sunrise, rainy days, mistiness — any transitory effect of nature that bespeaks luminous coloration or a sense of softness.
Emphasize gentle camera moves, slow dissolves, and still camera shots. A sense of gradual pacing. Even quick cut-away shots can slightly dissolve.
[Make] references to my anniversary date, the number 52, the number 82, and the number 5282 (for fun, notice how many times this appears in my major published works). Hidden N’s throughout — preferably thirty N’s, commemorating one N for each year since the events happened.
I don’t think any individual guideline of Kinkade’s is any more copyrightable than, say, the gender-switch theme of Beyonce’s If I Were a Boy. But what about the combination of all 16 guidelines? The “52″ references remind me of mapmakers’ practice of putting in one fake location on maps to catch copyists–though the location of any given place on a map is not copyrightable, copying a copyrighted map in toto is not permitted.
Kelly Osbourne’s description of the Alphaville inspiration for her video almost made the movie sound like “fashion” unprotected by copyright law. But the real reason for fashion’s lack of copyrightability is not vagueness but functionality–clothes can be worn. Dayton’s distancing of Otherside from Caligari suggested an anxiety of influence–less a legal worry than an avoidance of the derivative status of the videos that “ripped off” Caligari.
Given the grandiosity of his interview with 60 Minutes, Kinkade’s ambitions may be a little grander. Reducing his style to words paves the way for a broader IP claim over a style and manner of painting and image-crafting–or at least a family of marks:
“Thomas Kinkade is a multi-dimensional lifestyle brand, similar to Martha Stewart or Ralph Lauren,” says Kinkade. “You can put a Thomas Kinkade couch beneath your Thomas Kinkade painting. Next to the Thomas Kinkade couch goes the Thomas Kinkade end table. On top of that goes your collection of Thomas Kinkade books, Thomas Kinkade collectibles, Thomas Kinkade throw rugs. You can snuggle your Thomas Kinkade teddy bear.”
“There is a genius in what we’ve done,” says Kinkade. . . . [But] Kenneth Baker, critic for the San Francisco Chronicle, barely conceals his contempt: “He has a vocabulary, as most painters do. And it’s a vocabulary of formulas, unfortunately. And he shuffles the deck every so often. Lighthouse, cottage, sea, ships, sky, so on, so on. Little bit of waves, so on, rocks. And you end up with this.” . . .
When a canvas has felt the touch of Kinkade’s brush, it may be worth $50,000. But since he can?t do it all, he has dozens of hired hands to help. Their touch of the brush is less expensive, but regardless, product must be moved. And at QVC, The Home Shopping Channel, Kinkade says his art has “sold upwards of $1 million an hour.”
It’s a tricky legal question as to what critical mass of stylistic detail in a Kinkade painting is enough to warrant copyright protection when another is inspired/corrupted by it. Or what remarkable idiosyncrasy should be trademarkable. But for the aesthete, the policy question may be easy: how best to slow down Kinkade’s culture industry, and spur Osbourne’s and the Chili Peppers’ clever revivals?
PS: Here are the videos referenced:
Osbourne:
Red Hot Chili Peppers:
Alphaville:
Caligari:
x-posted from Madisonian.
November 24, 2008 at 11:18 pm
Posted in: Intellectual Property
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Responses (10)
A.J. Sutter - November 25, 2008 at 8:52 am
I would be amazed if Jean-Luc Godard were to feel that some essence of his movie is really captured by Kelly Osbourne’s video. (I also wonder if Kelly Osbourne ever actually saw more than the movie’s trailer.) While there are some common elements, e.g. the mens’ outfits and the pat on the model’s calf, the angles and lighting were quite different, etc., to say nothing of the soundtrack and the respective protagonists (Eddy Constantine is featured more in the trailer and movie than is Anna Karina, while the video is about Kelly). The video doesn’t really capture the style of the film, notwithstanding claims to the contrary. For Godard to sue would mean that he believes his work is really separable into little protectible atoms; I kinda doubt he feels this way about his work. Moreover, Godard’s picture itself is a satire of film noir, so many of the tropes in the music video actually have their antecedents in films not at all well known to Hollywood types. — a view from Tokyorama (òu le soleil se lève)
A.J. Sutter - November 25, 2008 at 8:54 am
ou should I say où …
Jens - November 25, 2008 at 9:29 am
“-though the location of any given place on a map is not copyrightable, copying a copyrighted map in toto is not permitted.”
That especially makes me wonder whether a map nowadays (i.e. an automatically created picture with map features on it) should be protected as a database instead of as a creative work. Might be right from the dogmatic viewpoint, and also has some different practical consequences.
Openstreetmap has serious copyright problems with maps – is it allowed to check a self-surveyed map against one based on Mapquest data to see what streets are missing and then resurvey on location?
Frank - November 25, 2008 at 3:58 pm
Thanks for those great comments, AJ and Jens. For the “protectible atoms” question, check out the Justin Hughes article “Size Matters (Or Should) In Copyright”:
“American copyright law has a widely recognized prohibition against the copyrighting of titles, short phrases, and single words. Despite this bar, effective advocacy has often pushed courts into recognizing independent copyright protection for smaller and smaller pieces of expression, particularly in recent cases involving valuation and taxonomy systems. Copyright case law is rife with dicta suggesting protection of short phrases and single words.”
By the way, I think Kinkade’s “N”‘s may have been used by Hirschfeld (as a tribute to his daughter Nina)…so even his trademark signal of originality may be hackneyed!
Frank - November 25, 2008 at 4:03 pm
Jens–I really like the idea of considering the map as a database. I’ve got to look more into the idea of copyright in maps….certainly the work of Edward Tufte suggests there can be a great deal of creativity in the presentation of knowledge. This old post of mine may be of interest:
http://madisonian.net/2006/06/25/ranking-vs-mapping-knowledge/
A.J. Sutter - November 25, 2008 at 9:22 pm
I’m not sure I understand the copyright problem with Openstreetmap. Isn’t copyright about expression? Let’s say Company A shows streets as single line, and Company B shows them as double lines, among other stylistic differences. Suppose B consults A’s map to verify completeness, and then resurveys. As long as B’s expression is different from A’s, how is this a copyright problem? The feature of A’s map that B is relying on is a utilitarian one. Reverse engineering isn’t prohibited under copyright law. Am I missing something?
As for the fictitious place “copyright traps theory, what is copying a map “in toto”? If B unwittingly includes one fictitious street from A’s map, but otherwise with different expression, is that substaintial enough for infringement? (And does it matter if the source of the error was Company A, acting intentionally, or Company A’s reliance on an erroneous county survey?) Is there caselaw on “copyright traps” in maps, or is it merely a practice followed by copyright owners who think they’re clever? Is this another instance where we’re brainwashed by copyright owners into thinking that their assertions of copyright do state the law?
BTW before one thinks this merely reduces to a database issue, one should keep in mind that there are places, such as L.A., Bay Area and Tokyo, where people do use paper-based maps quite a bit. But as for the database protection angle, Frank, do you like this because it strengthens a map owner’s ability to sue others for infringement, or what?
A.W. - November 26, 2008 at 10:27 am
There was some litigation a couple years back between Jon Fogerty of Creedence Clearwater Revival and Fantasy records. He had sold off his complete CCR catalog to them and then went on to produce new albums as a solo artist. One song he made solo, “The Old Man Down the Road” was alleged to be a rip off of the CCR song “Run Through the Jungle.” I think factually they are pretty close. Most of his songs do sound basically alike, and i say that as a man who loves his music. Personally I set up an all CCR playlist on my computer and just enjoy the swamp-rock heaven that ensues.
But on the other end, how can you really expect him not to sound like himself anymore?
Anyway, there was a supreme court case on this, although that was on collateral issues (attorneys fees, if memory serves). But that would be a good place to start for the notion of copyrighting style.
I would add that I think in general this whole thing is too restrictive of speech, and thus shouldn’t be allowed.
Frank - November 26, 2008 at 9:11 pm
AJ, thanks for that great little link on the copyright traps theory. I’ll check out my copyright book to see if there’s much on cases there. But this one appears serious and related to the issues you’re raising:
http://madisonian.net/2008/10/19/who-owns-your-neighborhood/
I liked the characterization of map locations as databases because, in the US, there is no statutory database right. But of course in Europe things are different; see, e.g.,
http://osdir.com/ml/dmca-activists/2004-11/msg00017.html
And in the US contractual provisions could lead to similar levels of protection, though Posner’s Wiredata decision suggests that courts will not allow DMCA provisions to penalize the circumvention of technological protections for such data.
Maps are fascinating because they present issues with relation to images that the abstraction/filtration/comparison test in Nichols (the Abie’s Irish Rose case) present in the case of text. In that case, the court was unwilling to let an author copyright plotlines/stock characters at too high a level of abstraction. Similarly, while a picture of a land plot could be copyrighted, you can’t copyright the representation of locations on it on a map.
The hard questions then arise with respect to copyright of selections/compilations. For example, while I can’t copyright a whole anthology of public domain poems, I can copyright my particular selection and arrangement of them. By the same token, a mapmaker may argue that his picks of places to represent is as creative as the anthology editor’s choice of poems. And a lot will hang (I think) on the degree of originality involved. For example, if one anthologizes all the poems that are already in Norton, plus a few more, I can’t see much of a copyright claim there-they’re the obvious choices. So too with mapping the best-known landmarks of a plot.
But isolating “hidden gems” of poetry may be worth some protection. So too might a map of the “best hidden places to eat.” The Maponics case mentioned above suggests the degree to which a map may well be making the places it claims to be mapping…for instance, think of entrepreneurial brokers’ declaring a new hot area of new york “noho” or “eho” to the north and east of SoHo. It’s “at once a description and a judgment,” or “fact and opinion,” or “fact and expression,” to mention a group of fact/value binaries I love to question (see, e.g.,
http://www.concurringopinions.com/archives/2006/11/in_memoriam_cli.html
Frank - November 26, 2008 at 9:21 pm
To A.W.–I agree, the restrictions on speech are pretty alarming here. Copyright law seems to get a “free pass” here, under the reasoning in Eldred v. Ashcroft. But the irony of that case is that the fair use “safety valves” it identifies are at war with each other. In other words, to the extent you can deploy the “fact/expression” dichotomy to relate what you are referring to, you may not be eligible to use fair use to directly copy what you want to copy. Sadly, only relating the facts (or some simulacrum of them, like a video of a television transmission) may well prevent one from effectively or compelling commenting on the original. There are some uses that demand the exact copy.
That said, I’m pretty sure that a parody very similar to Kinkade’s style would win a fair use battle…but the parodist may have to endure some absurd trial on issues like the likely effect of the parody on the market for licenses for non-parodic copies (see, e.g., Campbell v. Acuff Rose.)
A.J. Sutter - November 27, 2008 at 8:01 am
Thanks for your reply. As for the Maponics case, it isn’t clear from the info on the Madisonian blog what contractual provisions the defendant had agreed to; maybe Maponics’s best case lies in breach of contract rather than copyright infringement. Moreover, if defendant is asserting copyright in & ownership of the information, that’s a different kettle of fish from claiming that Maponics doesn’t own copyright in the subject matter because it’s inherently uncopyrightable (which is more along the lines of what I had been considering). As for your example of a map of “hot” neighborhhods or “hidden” eateries, I think that probably does have more protectibility, if it involves a judgment-based selection. In my earlier comments I was thinking of a straightforward street map; in that context, being too creative about which streets or landmarks you show obviously has some drawbacks for potential users.
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