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Copyright in Movie and Painting Styles?
Posted By Frank Pasquale On November 24, 2008 @ 11:18 pm In Intellectual Property | 11 Comments
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:
Red Hot Chili Peppers:
x-posted from Madisonian.
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URL to article: http://www.concurringopinions.com/archives/2008/11/post_35.html
URLs in this post:
 One Word: http://www.youtube.com/watch?v=QXctSjshB1M
 happily acknowledges: http://mrontemp.blogspot.com/2008/06/my-kelly-osbourne-one-word-mania-was.html
 Otherside: http://www.youtube.com/watch?v=oDypCFSGMQo
 stated: http://en.wikipedia.org/wiki/Otherside
 Thomas Kinkade: http://madisonian.net/2007/02/26/markets-dont-make-kitsch-kitsch-makers-do/#more-952
 translating his painting style: http://www.vanityfair.com/online/culture/2008/11/14/thomas-kincades-16-guidelines-for-making-stuff-suck.html
 If I Were a Boy: http://www.youtube.com/watch?v=BVTyLqkez6A
 interview with 60 Minutes: http://www.cbsnews.com/stories/2001/11/21/60minutes/main318790.shtml
 aesthete: http://prawfsblawg.blogs.com/prawfsblawg/2006/05/is_bach_better_.html
 culture industry: http://en.wikipedia.org/wiki/Culture_industry
 : http://madisonian.net/2006/06/25/ranking-vs-mapping-knowledge/
 : http://www.straightdope.com/columns/read/1058/do-maps-have-copyright-traps-to-permit-detection-of-unauthorized-copies
 : http://madisonian.net/2008/10/19/who-owns-your-neighborhood/
 : http://osdir.com/ml/dmca-activists/2004-11/msg00017.html
 : http://www.concurringopinions.com/archives/2006/11/in_memoriam_cli.html
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