If you are an independent filmmaker or photographer, it’s important to understand the aspects of your work that copyright protects.
Broadly speaking, copyright protects original works. But what specifically does that mean for you and your footage or images? Fulks v. Knowles-Carter, a recent copyright infringement case brought by independent filmmaker Matthew Fulks against singer-songwriter Beyoncé helps shed some light on this important creative legal question.
The plaintiff alleged that Beyoncé and several other entertainment defendants infringed his copyright in a short film by their distribution of a film trailer and film promoting the release of Beyoncé’s album, “Lemonade.” According to the Complaint, Mr. Fulks holds the copyright to a seven-minute film, “Palinoia,” comprised of “seemingly unrelated visuals in rapid montage, with the recitation of a poem used as voiceover against a distinctive soundtrack.” No. 16 Civ. 4278 (JSR) (S.D.N.Y. Sept. 12, 2016). The film is described as being about a Caucasian male and the “pain of a troubled and confused relationship.” Mr. Fulks alleged that Beyonce’s trailer infringed his copyright; specifically, that the trailer contained visual and audio similarities to Palinoia, and had a similar “total concept and feel.” Id.
Copyright infringement occurs when someone else reproduces or transmits creative work without the creator or owner’s permission. The test is fact-intensive and composed of multiple elements, but the thorough opinion of U.S. District Court for the Southern District of New York Judge Jed S. Rakoff in Fulks breaks it down into an easily understandable process.
Proof of copyright infringement
A plaintiff must initially establish two elements: First, ownership of the copyright; and, second, that the defendant infringed on that copyright by copying protected elements of the plaintiff’s work. The second element of copyright infringement, that the defendant copied, can be proven one of two ways: (1) With direct evidence that the defendant copied the plaintiff’s work (video evidence of the act of copying, for example), or (2) By the plaintiff proving both (a) that the defendant had access to the copyrighted work (that is, the defendant had opportunity to copy the work); and (b) that the defendant’s work is “substantially similar” to the plaintiff’s.
Fulks’s ownership of the copyright was not disputed. There was no direct evidence of copying, but Beyonce did not dispute access to the plaintiff’s film. Thus, the court evaluated whether there was substantial similarity between the works.
Protectable elements of a creative work
Substantial similarity depends on “whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Id. (internal quotations and citations omitted). This is commonly known as the lay-observer test, or the audience test. The similarity must involve copyrightable elements of the plaintiff’s work. Not all parts of a film or song are copyrightable; even if the work as a whole is copyrightable, it can be broken down into protectable and unprotectable elements. The protectable elements are those that are original expression by the filmmaker; copyright only protects original “expression of ideas, not the ideas themselves.” Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d. Cir. 2010).
So, courts first separate protectable elements from unprotectable—what is protectable expression from what is unprotectable idea—then apply the lay-observer test to the protectable elements to determine substantial similarity. As you might guess, the dividing line between protectable and unprotectable is often a thin one, and not clearly marked. But in Fulks, the line was clear, and the Court’s task relatively straight-forward.
The court identified nine pairs of scenes, one from Palinoia and one from Beyoncé’s trailer allegedly infringing the scene in his short. Examining the first pair, the court noted that both scenes featured the central character in a state of distress, leaning against a stable structure, head down and face hidden, that the characters were facing left and filmed from the left, and that the structures they were leaning on had hand-painted graffiti.
None of these elements were protectable. As the court explained, a character in a “state of distress” was not an original idea. It would be a natural thing, for example, for someone distressed to be leaning against something stable “as opposed to dancing.” The fact both faces were hidden fared no better. According to the Court, the hidden faces were just “scènes à faire”—stock scenes common to a genre, and not original enough to “provide the basis for substantial similarity.” Lowered, hidden faces, for example, are natural and necessary elements of any dramatic or sad scene; no filmmaker can honestly claim to have come up with the idea. Fulks.
Neither was the mere fact that both scenes were shot from the left protectable. Shooting from the left is far too general a framing technique to qualify as original expression. Sifting out all the unprotectable elements, the court applied the lay-observer test to the remaining protectable elements: “[R]ace, gender, wardrobe, and hairstyle” of the characters were different, and while the character in Palinoia leaned against a rooftop structure with “Fear not” written on it, the character in Beyoncé’s trailer leaned against an SUV with “indecipherable graffiti.” The court concluded that each scene invoked distress, but that the “ordinary observer feels this sensation in radically differently ways in each of the works.” Id.
That is, the idea expressed, distress, was the same in the two scenes, but the way it was expressed was different. Therefore, the court found no substantial similarity between the first two scenes. None of Fulks’s allegations of infringement fared better when the court analyzed the remaining scenes or the “total concept and feel.” Explaining that the themes (“a struggle of a relationship”), mood, and pace (“a pattern of successive montage of abstract scenes . . .”) alleged to be substantially similar “fall firmly on the side of unprotected ideas,” the court went on to note that finding actionable similarity based on such generalizations would be “like saying that Casablanca, Sleepless in Seattle, and Ghostbusters are substantially similar despite the different motivating forces behind the struggles there portrayed (Nazis, capitalism, and ghosts, respectively).” The court concluded that no reasonable jury could find the films substantially similar and dismissed the case. Id.
Copyright protects originality
Remember, it’s the expression of an idea, rather than the idea itself, that copyright protects. The result in Fulks doesn’t mean that certain themes, characters, and techniques are never protectable, just that they weren’t original enough to be protectable in this case. Originality is the heart of copyright law. Themes, characters, framing. and techniques can all be protectable if they are sufficiently original. An “ominous figure,” for example, is too generic a character to be copyrightable. But courts have held both James Bond (Metro-Goldwyn-Mayer v. Am. Honda Motor Co., 900 F. Supp. 1287 (C.D. Cal. 1995)) and the Batmobile (DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015)) to be original enough for protection.
Similarly, the framing and technique used by artists can be original enough to be protected. In one seminal copyright case, for example, the U.S. Supreme Court held that a photographer’s posing and instruction of the subject, arrangement of the scene, framing, and choice of lighting was “an original work of art, the product of the plaintiff’s intellectual invention.” Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60, 4 S. Ct. 279, 28 L. Ed. 349 (1884).
Inspiration Spaceship is a boutique Portland creative law firm focused on copyright and other legal issues involving filmmakers, photographers, artists, and other creators. If you have questions about this post or your own work, please contact the firm.