Friday, June 8, 2007

Copywritten (So don't copy me)

You have probably already heard about Knocked Up, the comedy which is in theatres now. It was written and directed by Judd Apatow who also wrote and directed the 2005 Steve Carell vehicle, the 40 Year Old Virgin, and who is one of the people responsible for the short-lived TV series Freaks and Geeks. Incidentally, if you have never seen Freaks and Geeks you should stop reading this blog and immediately make arrangements to rent all 18 episodes. The series takes place at a suburban high school in the early '80s, and it follows two sets of students: the nerds and the stoners (surely everyone reading this can relate to at least one of those groups).

Anyway, in between obnoxious projects at works today, I read an article about how a Canadian author, Rebecca Eckler, is suing Judd Apatow and NBC Universal claiming that the movie's premise was taken from her popular book entitled "Knocked Up: Confessions of a Hip Mother-To-Be." Besides sharing the same title, both the book and the movie feature an ambitious reporter whose life is turned upside down after she gets drunk and randy at a party and finds herself in a family way. Eckler claims she learned about the planned movie when she was peddling the rights to her book in Hollywood and that she saw a copy of the project's screenplay which featured a martini glass with a pacifier: just like the cover of her book.

Judd Apatow denies that the movie was copied from Eckler's book and points out the differences between the two stories: for example, the heroine of the novel gets knocked up by her fiance on the night of their engagement party, whereas the movie's female lead is a young careerist who ends up preggers after a one night stand with a pothead slacker.

This leads to the question of how similar an allegedly offending work must be in order for it to infringe on an earlier work's copyright.

In the famous case Nichols v. Universal Pictures Corporation (45 F.2d 119 (2d Cir 1930)), Judge Learned Hand (yes, for those of you who never went to law school, this guy's name was Learned Hand) weighed in on the question.

The plaintiff was the writer of a play called Abie's Irish Rose while the defendant produced the movie The Cohens and the Kellys. Both works feature a young couple, one from a Jewish family, the other from a family of Irish Catholics. These star-crossed lovers become enamored of one another and cross-cultural hijinks ensue when their families get together. The Hand noted that a copyright does more than protect the author against works which copy them verbatim (otherwise the protection would be meaningless), but nevertheless the content taken from the original work must be substantial.

In this case, Judge Hand found that borrowing the basic concept of a Jewish/Irish multicultural couple was not substantial enough to constitute infringement and that any similarities between the characters in the two works were due to their reliance on well-worn ethnic stereotypes (e.g. the drunken Irishman, the bearded rabbi) and that such generic characters were in the public domain and not subject to plaintiff's copyright.

Possibly the clearest example of copyright infringement ever is the silent film Nosferatu. Filmmaker F.W. Murnau was denied permission by Bram Stoker's estate to make a movie of the novel Dracula, so instead he took the story of Dracula and just changed some of the names and places. For example, the creature is called Nosferatu rather than a vampire, the Count's name is Orlok, he hails from Czechoslovakia, and the setting is supposed to be Bremen rather than London. Stoker's widow almost succeeded in having all prints of Nosferatu destroyed since the work so clearly violated her late husband's copyright, but several prints managed to outlive old lady Stoker as well as the copyright.

So copying the plot of a previous work and just changing the names is clearly infringement whereas just taking the basic premise of a previous work is not likely to constitute infringement: yet of course there is a lot of grey area in between these two extremes. As further illustration, here are a couple of my favorite copyright cases that I remember from the class I took in law school:

First, there was the case against George Harrison claiming that the song he penned "My Sweet Lord" infringed the copyright of the Chiffon's hit "He's So Fine" given that the chorus of both song features the same three notes in the same order followed by similar background harmony "Doo-lang-doo-lang-doo-lang"/"Hal-le-lu-jah". Surely Harrison and the Beatles must have heard this song on the radio at some point. Harrison gave a long account of the song's creation, which involved a late night raga session and (I'm sure) plenty of hash. Yet the court ended up ruling that "My Sweet Lord" did indeed infringe on the writer's copyright given that the two songs were basically the same tune with different words. The judge suggested that one need not intentionally set out to rip off another's work, but that one could infringe by "unconsciously" mimicking a work that you've previously seen or heard.

Then there was the case involving the TV show The Greatest American Hero. This sitcom centered around a divorced high school teacher who -- on a class trip to the desert or something -- stumbles upon a spaceship containing a red suit and cape which endows its wearer with superhuman powers. He takes the suit and becomes a freelance superhero although a bumbling one given that he immediately lost the instruction manual. There was also like an FBI agent investigating the alien suit who develops an I'm sure not-at-all-homosexual friendship with Super English Teacher Man. Warner Brothers and DC Comics sued ABC claiming that this was an impermissible rip off of Superman (They even make a joking allusion to "It's a bird! It's a plane" earlier on in the series, I think). But the court disagreed citing the many original elements of the sitcom and stating that airborne, caped superheroes had by then become a generic archetype and were thus in the public domain. I've never seen The Greatest American Hero (and it looks pretty '80s-licious and cheesetastic), but I remember the court's decision made it sound pretty entertaining.

Anyway, I hope you found my dorking out on copyright law informative and at least slightly entertaining. Another well established and vague rule is that "ideas" are not protected by copyright whereas "creative expression" is. This explains why taking the basic plot of a story wouldn't be infringement. This also explains why the historians failed in their lawsuit claiming that Dan Brown's novel the Da Vinci Code infringed on the copyrights of their nonfiction works exploring the legend of the bloodline of Jesus Christ. Under this rule, incorporating their theories in his work would clearly not constitute copyright infringement.

Photos: Seth Rogen and Katherine Heigl in Knocked Up, the creature in Nosferartu, album cover of George Harrison's My Sweet Lord, William Katt as The Greatest American Hero.


Jonathan Bailey said...

I just wanted to say thank you for the well thought out analysis and commentary on the subject. It's a great read about a difficult subject.

Not having read the book or seen the movie, I can't comment on the lawsuit, but I know that the bar on these things is set very high. Most of these cases go nowhere. The Syriana case and the DaVinci Code case leap instantly to mind.

Oh, and regarding the Greatest American Hero. My wife turned me on to that show. If you haven't seen it you need to. It's a stupid eighties comedy, but there is something amusing about a bumbling superhero that can fly but can't land and is afraid of heights.

Maybe not worth buying, but worth renting!

Nicole said...

Oh my God, how did you not mention the case about 'Groundhog Day'?

Meeg said...

Wow, I totally forgot about that one. I don't think it was one of my favorites... but now that you mention it didn't the book that accused groundhog day of copying it contain a coven of witches and the nuclear holocaust?