On a Saturday night in September, I took my wife to the first ever “Call of Duty” convention, hosted by Activision Blizzard inside a hangar on the old airfield where Howard Hughes built the Spruce Goose. Did I tell her ahead of time that I was taking her to a nerd convention where the only food available would be burgers and fries from a recreated fictional in-game restaurant called “Burger Town?” No way! I told her I was taking her to a Kanye West concert! Which was kind of true.Kanye was the “big performance” at the end of the geekfest (which explains why increasingly better looking people started showing up as time went by). Unfortunately, even Kanye’s harem of near-naked dancers could not distract from the utter awfulness of Kanye’s performance. Worst. Concert. Ever. (And yes, he did have an I-am-a-Greek-god theme going on in the background.)
It’s a Merry .XXXmas for the Most Unlikely Players in the Internet’s Newly Minted Red Light District
It appears I’ve found a blogging niche: the seedy, salacious, saucy legal topics everyone is too scared (or maybe smart) to write about. (And this topic doubles as a nice relief from the usual “holiday shopper gets mauled in battle over the last available Let’s Rock Elmo“ headlines.) Colleges, universities and businesses spent this holiday season shopping for a special kind of XXXmas gift — the gift of a good name.
On December 6, 2011, the new domain extension .xxx was gobbled up by the most unusual suspects, with more than 55,000 new names registered within the first 24 hours. The .xxx top level domain (TLD) was designed — prepare to be shocked here — exclusively for adult entertainment content. But ICM Registry, which is operating the new TLD, also opened up registrations to other organizations looking to protect their trademarks from scandalous misuse — or from those nefarious “cybersquatters” who might be looking for a buck NOT to put the domains to no good (like the brilliant entrepreneur who, in the wonder years of the Internet, operated WhiteHouse.com as a porn site (the real website is WhiteHouse.gov).
In other words, the Internet’s new red light district is open for business to those who were naughty OR nice this Christmas. But are the nice kids who come to the new .xxx marketplace late going to be at the mercy of the fast movers on the naughty list?
Q: What are the legalities of using actors to portray real people in a film — a fictionalized bio-pic in which the main character is purely fiction but some of the other characters are real, both living and deceased? For example, if Forrest Gumpdid not use actual footage but instead chose to represent those scenes using actors to represent the famous people?
A: I really liked Forrest Gump when I saw it. I’m pretty sure I even cried in it. Now I hate it for some reason. Maybe it’s just a general backlash against Tom Hanks’ haircut in The Da Vinci Code. But let’s not get into that.
As to your question…we Americans generally think we all have a 1st Amendment right that gives us the ability to say what we please when we please, which has lead to such enlightening phenomena as Ashton Kutcher’s constant Tweeting (thanks a lot, Founding Fathers). What is important to understand, however, is that this right of free speech is not absolute. We are not always free to say what we please, especially when it comes to saying things about other people.
Before answering your question, a word of warning: whether or not your depiction of a real person in a film can open you up to liability is not a question that has a definite answer. It requires a fact specific analysis and even then, it may not be entirely clear how strong of a ground you stand on. Also, you’ve got to remember that we’re dealing with people and people are nuts. Thus, even if it appears you’ve done everything by the books and you’re legally justified in doing what you’re doing, you could still get sued by someone who didn’t like the way you depicted him or her in a movie.
For those of us (males) who entered adolescence in the early ‘90s, Angelina Jolie is a semi-celestial being whose very presence makes us want to cry out “we’re not worthy.” Okay, so maybe the 13 year-old in me still wants to be Crash Override spelling out “CRASH AND BURN” for Acid Burn after defeating The Plague. But that is neither here nor there.
The news of the day is that a Croatian author/journalist named Josip Knezevic has filed a federal lawsuit (using an Americanized version of his name) against Angelina and several persons/entities related to her upcoming film, In the Land of Blood and Honey, for copyright infringement. According to Mr. Knezevic, he wrote a book entitled, The Soul Shattering (not to be confused with the World of Warcraft aggro reducing spell,SoulShatter), which Angelina’s executive motion picture producer, Edin Sarkic, allegedly ripped off. The case is interesting because it not only provides a detailed description of what was ripped off, but it also provides a plausible explanation for how the alleged rip-off occurred.
The Rip-Off Allegations
Nobody would ever believe that Angelina ripped anyone off. This is Lara Croft we’re talking about. And Salt. She has the word “angel” in her name and adopts children from places like Phnom Penh, Addis Ababa and Ho Chi Minh City. She is a female Airwolf — beyond reproach.
But Mr. Knezevic does not allege that Angelina herself — who is the director and credited writer of theIn the Land of Blood and Honey — ripped off The Soul Shattering. Instead, he alleges that her executive producer, Edin Sarkic, met with Knezevic “at least three times to discuss details of [the book], including plot and character development and the story’s cultural significance and historical accuracy.” Mr. Knezevic also alleges that his conversations with Sarkic “evolved into pursuing the possibility of creation a motion picture from [the book]” (although he never alleges that there was a contract or even an implied one). And then, of course, he allegedly learns that Sarkic is producing a movie without him that rips off his (incredibly dark, depressing) ideas. Specifically, Knezevic alleges that:
- Both works are love stories that take place in war-torn Bosnia and Herzegovina in the early 1990s;
- In both works, the main female character is a Croatian with a Muslim background, who lives near Sarajevo, and who is captured and imprisoned in a Serbian concentration camp located in a village (apparently this detail is important because most camps were located in abandoned industrial or agricultural complexes);
- In both works, the main female character is subject to continuous abuse and rape by soldiers and officers in the camp and is forced to be a servant at the camp;
- In both works, the main male character is a camp commander who’s father is a high-ranking “Greater Serbian” and important officer of the Yugoslav Peoples Army; and
- In both works, the main male character struggles with the polarity of his emotions and military duty and eventually helps the female protagonist escape.
Are these allegations sufficient to support a claim for copyright infringement? (Or, as some would suggest, did his ideas become, after voluntary communication to others, free as the air to common use? Wait, those ideas weren’t communicated on the Internet, so I guess that argument doesn’t apply.)
What Would the Learned Hand Say?
When in doubt, always use duct tape. And if that doesn’t work, seek guidance from the Learned Hand.
As it happens, Judge Hand wrote a famous opinion about a similar case in 1930. In Nichols v. Universal Pictures Corp., a plaintiff alleged that a “motion picture play” called “The Cohens and the Kellys” ripped off his play called “Abie’s Irish Rose.” Both works involved secret marriages between a Jewish boy and an Irish Catholic girl where the families quarreled about the union after its discovery. But both works also bore significant differences. Judge Hand wrote that “[t]he only matter common to the two is a quarrel between a Jewish and an Irish father, the marriage of their children, the birth of grandchildren and a reconciliation.” And that’s not enough. Although the plots were similar, the expression of the ideas was different. (Remember, copyright law only protects the expression of ideas — not the actual ideas themselves.)
Judge Hand teaches that when an author copies “an abstract of the whole,” we must examine the characters and the “sequence of incident.” In other words, we must examine similarities between the plots, themes, dialogue, mood, setting, pace, characters, and sequence of events.
In Mr. Knezevic’s case, he has probably sufficiently alleged that The Soul Shattering and In the Land of Blood and Honey are similar enough to prevent his case from being thrown out (at least initially): he has alleged that the works share the same setting, location, time period, theme, and involve similar characters with similar backgrounds, facing identical challenges. Although none of these similarities are protectable when considered individually, the particular form and sequence of their expression is protected. And, it helps that Knezevic has a plausible, straightforward explanation for how his ideas made their way into the film, which doesn’t rely on traditional theories like “they read my unsolicited submission,” “their agent’s wife attended a play at my daughter’s school, where I talked about my project during intermission,” or “the government is broadcasting my thoughts to them while I sleep.”
This does not necessarily mean that Mr. Knezevic will be able to obtain a preliminary injunction. Far from it. In all likelihood, unless the case settles (which it may), Mr. Knezevic will have a long road ahead of him before he reaches a jury. Because of the high standard courts apply in assessing substantially similarity between motion pictures, Knezevic will probably want to be able to point to specific examples of shared dialogue. In addition, he’ll need to avoid the dreaded (to plaintiffs) scènes à faire doctrine, which excludes from the copyright analysis genre-specific stereotypes, such as femmes fatale in spy novels, the crusty old lawman in Westerns, and (arguably) gruesome war crimes in Bosnian war stories. (For this reason, plaintiffs in these cases tend to prefer pursuing breach of contract claims, which are not subject to the same rigorous similarity analyses as copyright claims.)
And even if a court finds that that Mr. Knezevic is likely to prevail at the end of the day, the enormous time and resources that go into a major motion picture release may convince a judge not to grant a preliminary injunction anyhow. (In fact, it was just that argument that helped Warner Bros. avoid a preliminary injunction when a judge found that it had probably infringed a tattoo artist’s copyright in Mike Tyson’s face tattoo. Here’s betting the decision was still good enough to score the artist apretty sizeable settlement, though.)
Nevertheless, it will be interesting to see just how similar (or dissimilar) the characters and event sequences are. Since someone apparently “lost” my invitation to the premiere of In the Land of Blood and Honey (possibly after reading an early draft of the first paragraph of this post), I will have to wait until the film is released in theatres later this month before being able to provide any more definitive analysis. Until then, feel free to enjoy this instructional video on how to do your makeup like Angelina Jolie’s character from Hackers.
Q: Hello, I just read the article on what “defined net profits” is/means. I’ve just signed a deal memo and am concerned with the wording…actual proceeds, no mention of gross or net (which may be a good thing). Please let me know what might be next steps…
A: The basic difference between gross and net is the off the top deduction of expenses and fees in calculating net. Speaking of off the tops, I just came from a bris. It was a particularly good one. Have you ever been? If not, find one on Facebook or Craigslist, grab a few friends, and attend. You’ll enjoy it. Mohels tend to have a great sense of humor.
Anyway, your deal is probably with a production company that will not distribute the film itself. And the term “actual proceeds” probably refers to the revenues received by the production company. The blog about “defined net proceeds” focused on a distributor or studio definition of back-end, which is basically distribution revenues less distribution costs. In your case, if in fact your deal is with a production company that will not distribute the film itself, you will be participating in the production company’s revenues.
The first time I saw Dakota Fanning’s now-infamous ad for Marc Jacobs’ new Oh Lola! fragrance was on the back of a Cosmopolitan resting in the hands of my 19-year old baby sister. My immediate reaction was “OMG…is that Dakota Fanning?! No way she’s grown up that fast!” Then my gaze shifted to the circus-caliber trait that Dakota and I happen to have in common (no, it’s not our shocking good looks) — double-jointed elbows. (God, I love it when celebrities are weird like me.)