So it appears we haven’t covered this up to the present, but back in 2020 Francesca Gregorini sued Apple and M. Night Shyamalan for copyright infringement. At issue was a series for Apple TV called Servant and, according to Gregorini, the manner in which the first three episodes of the show copied from Gregorini’s movie, The Truth About Emanuel.
As is often the case in these disputes, the “brazen copying” that Gregorini references in his suit can be more properly categorized as broad themes and ideas that, absent any other similiarities, are not afforded copyright protection in and of themselves.
“Servant” and “The Truth About Emanuel” both tell the story of a mother who, grieving the death of her baby, forms an attachment to a realistic doll. In both, a teenage nanny goes along with the mother and cares for the doll as if it were alive.
The court dismissed that case in the summary judgment phase, and even awarded Apple and Shyamalan attorneys’ fees. The Ninth Circuit, however, revived the suit, claiming that a reasonable jury might reach a conclusion different than that of the judge.
But there was another argument made by Apple and Shyamalan in the first trial: none of them had ever seen Gregorini’s film. When the Ninth Circuit sent this back to a jury trial, that was once again the argument the defendants made. In copyright law, to have a claim, you must establish that the defendants had access to the plaintiff’s work, either because of events that brought the work to the defendants directly, or due to the work being so widely available that it is reasonable to assume access generally.
Given that The Truth About Emanuel was a film that included the likes of Jessica Biel and Alfred Molina, how likely is it that Apple and Shyamalan’s claim that no access could be established is accurate? Well, Gregorini certainly didn’t establish and sequence of events that would have led the work to the defendants directly, such as a spec script being sent to them years ago or the like. As for the circulation of the film itself, which came out in 2013, the film appears to have grossed just $4,404 across 11 theaters… total.
That certainly must be what led the jury to flatly claim that none of the defendants had any access to the work in question and, since there was no substantial actual copying of expression being done, found for the defendants.
So while I can’t say I know what The Truth About Emanuel actually is, having never seen it, I do know that the truth about The Truth About Emanuel is that it wasn’t copied for Servant.
Well, it took awhile, but we finally got here. Earlier this year, we discussed the game Palworld shortly after its release. It made our pages because the game is clearly partially inspired by the Pokémon series of video games, with some very stark differences. Similarities aside, the characters in the game are certainly different than those in Pokémon games, coupled with the use of firearms in the game along with other game mechanics that made it demonstrably different than any other game. As we highlighted at the time, this made Palworld something of an example of how the idea/expression dichotomy works and we warned that, while Nintendo or The Pokémon Co. might eventually pursue legal action over the game, a copyright suit ought to have a hard time surviving a defense using that dichotomy.
Which is why, while I wasn’t terribly surprised to learn that Nintendo and The Pokémon Co. have in fact sued Pocketpair over its Palworld game, I sure wasn’t expecting to learn that it was doing so over patent infringement.
Nintendo and The Pokémon Company announced they have filed a patent-infringement lawsuit against Pocketpair, the makers of the heavily Pokémon-inspired Palworld. The Tokyo District Court lawsuit seeks an injunction and damages “on the grounds that Palworld infringes multiple patent rights,” according to the announcement.
Beyond mere copyright concerns, though, Nintendo’s lawsuit announcement specifically alleges patent infringement on the part of Palworld (though this difference could come down to vagaries of translation from the original Japanese). A lawsuit over patents would seemingly require some unique game mechanic or feature that has been specifically granted stronger protections by the patent office. While the Pokémon Company does hold a number of (US) patents, most of them seem to deal with various server communications methods or the sleep monitoring capabilities of Pokémon Sleep.
Adding to the mystery in all of this is that nobody but the plaintiffs seems to have any idea what these patents that were infringed upon could be. I tend to agree that perhaps there’s a translation issue at work here and this really is instead a copyright and/or trademark infringement suit, but we’ll have to wait for more to come out to see.
If it is patents, I’ll be surprised. I’ll be even more surprised if there is any validity to such a patent infringement claim. That’s just not typically how these things in the video game industry work.
But if it really is a trademark and/or copyright claim, it should fail and fail hard… if this suit were brought in the United States. In Japan, however, it’s more complicated. Japanese copyright law does not have an explicit idea/expression dichotomy in the way US copyright law has, but the courts there do sometimes give a nod to and use it in a similar way.
But any sane copyright law would allow for games to be inspired by, but not replicas of, an original work. The whole point of copyright generally is not to allow any one entity own the concepts that go into a video game, but instead the specific expression of the same. And, for what it’s worth, Pocketpair too appears to be confused as to what this is all about.
“We have received notice of this lawsuit and will begin the appropriate legal proceedings and investigations into the claims of patent infringement,” Pocketpair says in a statement. “At this moment, we are unaware of the specific patents we are accused of infringing upon, and we have not been notified of such details.”
And so now we wait to see what the actual details here are. Frankly, sans some translation issue, none of this makes much sense to me. And while Nintendo and The Pokémon Co. certainly have shown themselves to be willing to stretch IP laws to be the bully generally, this seems to go beyond the norm.
The idea/expression dichotomy strikes again! There is a misconception among some as to how copyright works, specifically in terms of what is protected under copyright and what is not. This has been distilled down to the afore-mentioned dichotomy, where general ideas do not enjoy the protection of copyright, whereas specific expressions do. So, an anthropomorphic mouse-hero that wears a cape and can fly is an idea that is not protectable, while the specific depiction of Mighty Mouse (just to age myself) is protectable.
I don’t expect every member of the public, nor even every content creator out there to know this sort of thing. I do, however, expect the lawyers they contact in an attempt to file loser lawsuits to know it. Sadly, these suits make their way into the courts far too often and are nearly as often dismissed on summary judgement. Such seems to be the case with Daniel Kassel’s lawsuit against Comedy Central over two works that feature a talking manatee that has life problems and a human girlfriend.
The work at the center of the lawsuit is Happily Everglades After, a storyboard animatic posted to YouTube by author Daniel Kassel. The work, originally titled Jukebox Manatee, tells the story a manatee protagonist with a laid-back attitude and a human girlfriend who, in the words of the complaint “suffers misfortunes as a commentary on life and its travails with irony and black humor.” The author finalized the work, after “brainstorming” with fellow students in the Pratt Institute, in 2018.
But the author did not take a laid-back approach to the release of Loafy, a one-season adult animated comedy premiering on the Comedy Central digital platforms in August 2020. The show, created by former Saturday Night Live cast member Bobby Moynihan and made by production company Cartuna, is (according to its publicity materials) “a semi-improvised animated series about a weed-dealing manatee who spends his days getting high and lazing around his tank at the Central Park Zoo.” Kevin Smith, Jason Mewes, Gina Gershon, and Tom Green, among others, provide voiceovers for the series.
As the court noted in its ruling in favor of the defense on summary judgement, some of those specific elements and many, many more are at the heart of why this failed as a matter of copyright infringement. I imagine that part of the reason this action was brought in the first place is that a couple of people that worked on Loafy at Cartuna were classmates of Kassel earlier in life. Perhaps he thought that created some link or served as further evidence of infringement. Comedy Central didn’t even bother suggesting that it or the production company never had access to Kassel’s work, in fact.
But as the court went on to say, and I paraphrase: so fucking what? The characters in Kassel’s complaint are not described in protectable elements, the court ruled. A talking manatee with a human girlfriend that talks about his life? That’s an idea, not a specific expression. Hell, Kassel’s work is a four minute cartoon short, whereas Loafy is an episodic series. They’re substantially different in terms of length, themes, and specific expression in a number of ways, up to and including the very nature and length of each work.
And even if the author’s manatee character were unique enough to be protectable, the court found, the “total concept and feel of the two works” was not substantially similar in any event. The original animated short was a four-minute work drawn in stop-motion animation, set in the Everglades, featuring a manatee character who “appears optimistic despite being run over and physically scarred by humans in a boat.” The Comedy Central work was an eight-part animated series, set in a dilapidated zoo near Central Park, featuring “a foul-mouthed and crude drug dealer” whose humor was “designed to leave the viewer laughing.” These and other differences in concept and feel made the author’s claim implausible even on the pleadings.
Kassel brought two other claims, one for unfair competition and another for deceptive acts and practices. The court hand-waved away both. The unfair competition claim failed because it was, again, about ideas and concepts, rather than a specific “tangible good.” The deceptive practices claim failed as well, basically because it essentially reiterated the claim of copyright infringement.
And so this lawsuit goes in the waste bin, wasting the time of everyone involved and, presumably, some money that Kassel would have spent on his lawyers. Lawyers who really should either be giving their client better advice on claims like this, or refusing to take such loser cases on.
It’s a running joke here at BestNetTech that many elected officials in charge of copyright policy seem wholly ignorant of the subject. But sometimes, it’s still shocking when people who should definitely know better brazenly parade their cluelessness.
Enter Jerry Nadler, the highest-ranking Democrat on the House Judiciary Committee, and a man who has been knee-deep in copyright policy for many years. His recent comments on intellectual property weren’t just ignorant, they were downright pathetic.
This one is from a month ago, but it’s been gnawing away at me for a few weeks. I figured it was still worth calling out. Last month, the House Judiciary Committee held a hearing on “Intellectual Property,” and ranking member (i.e., top Democrat) Jerry Nadler’s opening remarks were so far off-base and factually lacking that it deserves to be discussed.
“Mr. Chairman, intellectual property in the United States, at its core, is the right to own an idea.
I mean, it’s literally not. And you’d think the top ranking Democrat on the Judiciary Committee would know that. In the US, we literally have what’s known as the “idea expression dichotomy” which says you can’t own an idea. So, no, that’s not only not “at the core” of the IP system in the U.S., it’s literally and explicitly cut out of the IP system. For good reasons.
I mean, the very law that Nadler is supposed to be the expert in literally says: “In no case does copyright protection for an original work of authorship extend to any idea.”
And Nadler kicks off his statement by claiming that the “core” of copyright is protecting ideas?
That’s horrifying.
And, on top of that, the setup, intent, and purpose of the copyright system has never been about “ownership,” anyway. It has always been about creating a limited time monopoly right on particular expression with the point being to make it more widely available to everyone, not to lock it up as “property” of one entity.
So it’s not about ownership, and it’s not about ownership of ideas.
And yet, Nadler opens his remarks by claiming that this is the “core” of the IP system in the US?
Not a good look. Not a good look at all.
The power of IP is not in the individual movie, the chemical compound, or the store sign—though they certainly have value—but in the exclusive authority to reproduce that protected content. Because it is difficult to put most creations in the stream of commerce while also keeping them under lock and key, the enforcement of IP protections is key to the success of our system.
I mean… come on? This is the kind of nonsense argument that was debunked decades ago. The enforcement has never been the “key” to the system. The entire world of IP was built on the idea of “toleration,” in which there is actually a ton of regular and incidental infringement which everyone should rightly ignore. The only real issues tend to come in with large scale, industrial infringement, which is what the system was actually built to protect against.
Indeed, so many of the problems (and lack of respect) for modern copyright law come from nonsense spewing from industry (and industry-backed politicians) that we need to increase enforcement because every unauthorized copy is a crime against humanity.
If the ideas we protect are easily stolen, then they hold no value. And if copyrights, trademarks, and patents have no value, then the American system cannot encourage innovation, protect consumers, help drive economic growth, and keep our country safe.
Again, we’re right back to ideas that were debunked decades ago: the idea that if something can be copied freely it has no value. That’s just fundamentally wrong. As we’ve shown for years, there are plenty of wonderful business models built on top of freely copyable works (including much of the internet). Anyone who claims that if something is “easily stolen, it has no value” doesn’t understand copyright, patents, or basic, fundamental economics.
BestNetTech is freely copyable. We release everything we publish into the public domain because that increases the value. It has helped me build an entire business around what I write because it can spread more widely. My ideas have value, and spreading them more widely allows me many more opportunities to capture some of that value, while simultaneously expanding the overall pie of knowledge.
Also, if something is easily stolen, then it must fundamentally have value. Why would anyone “steal” it otherwise? People don’t “steal” things that have no value (and we’re leaving aside that we’re not even talking about “stealing” but copying, but that’s a different issue).
What Nadler is really saying is that if something is easily copied, then one particular favored business model is slightly trickier to use to achieve monopoly rents. But that… is not even remotely the same thing as saying that it “has no value.”
His remarks contain a lot more that is similar, all setting up more counterfactual maximalist garbage in order to justify some more draconian laws and crackdowns on totally understandable and innocent behavior.
But, in no world should such a high-ranking US official, who has spent years overseeing copyright policy, spread so much fundamental disinformation on the very basics of that policy.
It’s embarrassing. And it will lead to dangerous policies that are literally designed to stop the flow of “ideas” and knowledge at a time when we need such things to be more widely available.
Nadler is smart enough and has worked in copyright long enough to know that these remarks were not just wrong, but 100% the opposite of what copyright is for. We deserve better.
Ah, the idea/expression dichotomy strikes again! It really is incredible just how many copyright lawsuits and disputes are launched due to the fundamental lack of understanding of this particular nuance of copyright law. As a very quick reminder: you cannot copyright an idea, but you can copyright specific expression. For example, you cannot copyright the idea of a wise-cracking rabbit that outwits a human being, but you can copyright the character Bugs Bunny.
You also cannot copyright the idea of a mocumentary about teachers in an under-funded elementary school, but you can copyright the show Abbott Elementary. This, however, is a concept that appears to be lost on writer Christine Davis, who sued a whole bunch of folks responsible for that show for copyright infringement.
Davis, a New York-based actor, writer and schoolteacher, sued ABC, Emmy award-winning “Abbott Elementary” creator Quinta Brunson and others in 2022, calling the show a “veritable knock-off” of “This School Year.” Davis said she pitched her show to producers with connections to ABC and “Abbott Elementary” streamer Hulu, who allegedly forwarded her work to the companies without permission.
Davis argued that “Abbott Elementary,” a workplace mockumentary about an underfunded public school in Philadelphia, copied several elements of her planned mockumentary about her experience teaching in New York City public schools.
The suit’s claims were roughly what you’d expect from a suit like this if you’ve read them before. Rather than alleging any actual direct copying of expression, the suit instead accuses those responsible for the hit show of copying a whole bunch of independently unprotectable “elements” from a pitch document she submitted to ABC in the hopes that all of them strung together result in something protectable. Opening scenes of a teacher in a classroom giving a speech to students. Teachers operating in an underfunded school where hilarity ensues. You get the picture.
Fortunately, the defendants moved to dismiss the suit, first for lack of personal jurisdiction, and second due to the claims being for unprotectable ideas. The court denied the first, but granted the motion to dismiss on the second.
“While both works depict the lives of idealistic teachers working in an inner-city public school,” Failla said, “differences in plot and structure far outweigh this general likeness.”
Failla also noted distinctions in each show’s tone, characters and “total concept and feel” in finding that Davis could not sustain her copyright case.
“The two works use qualitatively different plots, themes, and characters to cast different perspectives on the experiences of teachers in under-resourced, inner-city public-school settings,” Failla said.
The ruling itself, embedded below, goes into excruciating detailed analysis on each of the claims, excoriating each of them. For example, on the claim that the opening scenes were identical, the court says:
Far from “copy[ing] the identical message and tone for the opening speech[] of [its] protagonist,” as Plaintiff would have it, Abbott Elementary introduces its protagonist and supporting characters in a markedly more happy-go-lucky way. (Pl. Abbott Opp. 12). Teagues’s monologue is decidedly more optimistic and hopeful than Davis’s, and is delivered in a different format, intercut with lighthearted vignettes depicting the relative chaos of her classroom and those of her colleagues, unlike the pointed dialogue in This School Year. (AE 1-3). Even the references to Teagues’s frustrations are depicted in a comedic, upbeat light. (Id. at 3 (suggesting Teagues “sub[bed] out therapy for axe-throwing,” and interposing a cutscene depicting the activity)). Ultimately, the “entirely different contexts” of the opening monologues and Case 1:22-cv-05944-KPF Document 92 Filed 03/19/24 Page 33 of 49 34 their differences in tone, Shull v. TBTF Prods., Inc., No. 20-3529, 2021 WL 3027181, at *2 (2d Cir. July 19, 2021) (summary order), defeat Plaintiff’s attempt, by ipse dixit alone, to declare the two speeches “nearly identical” (SAC, Ex. E ¶ 2).
You get the point.
And so the suit, of course, goes nowhere, but the groups behind the show had to waste time, money, and effort defending what is a clear money-grab. But, hey, at least the court got this one right!
When it comes to copyright suits or conflicts that never should have existed, one of the most common misunderstandings that births them is not understanding the idea/expression dichotomy in copyright law. Even to most laypeople, once you explain it, it’s quite simple. You can copyright a specific expression of something, such as literature, recorded music, etc., but you cannot copyright a general idea. So, while Superman may be subject to copyright protections as a character and in depictions of that character, you cannot copyright a superhero that flies, wears a cape, shoots beams from his eyes, and has super strength. For evidence of that, see: Homelander from The Boys.
But while Homelander is a good case study in the protections offered by the idea/expression dichotomy, a more perfect one might be the recently released PC game Palworld, which has often been described as “Pokémon, but with guns.” This thing is a megahit already, hitting Early Access mid-January and also already hitting 1 million concurrent players. And if you’re wondering just how “Pokémon, but with guns” this game is, well…
The art styles are similar, it’s essentially a monster-collecting game involving battles, etc. and so on. You get it. And this has led to a whole lot of speculation out there that all of this somehow constitutes copyright infringement, or plagiarism, on the part of publisher PocketPair. There is likewise speculation that it’s only a matter of time before Nintendo, Game Freak, or The Pokémon Co. sues the hell out of PocketPair over all of this.
And that may still happen — the Pokemon company says it’s investigating Palworld. All of those companies have shown themselves to be voracious IP enforcers, after all. But the fact is that there is nothing in this game that is a direct copy of any expression owned by any of those entities. To that end, when asked about any concerns over lawsuits, PocketPair is taking a very confident posture.
On the other hand, we had a chance to talk to PocketPair’s CEO Takuro Mizobe before Palworld’s release, and addressing this topic, Mizobe mentioned that Palworld has cleared legal reviews, and that there has been no action taken against it by other companies. Mizobe shared PocketPair’s stance on the issue, stating, “We make our games very seriously, and we have absolutely no intention of infringing upon the intellectual property of other companies.”
Mizobe has also commented that, in his personal opinion, Palworld is not at all that similar to Pokémon, even citing other IPs that Palworld more closely resembles. (Related article) He encouraged users to see past the rumors and give Palworld a chance.
And he’s right. The game mechanics themselves go far beyond anything Pokémon has on offer. And while we can certainly say that even some of the Pals themselves look as though they were inspired by some well-known Pokémon, there are more than enough differences in sum-total to make any claim that this is some kind of direct ripoff simply untrue. Some of the ideas are very, very similar. The expression, however, is different.
In addition to the legal review that Mizobe mentioned, it’s not like the game as a concept has been kept a secret, either.
Though it released just a few days ago, Palworld’s concept and content has been open to the public for quite a while, and were even presented at the Tokyo Game Show in both 2022 and 2023. Many users are of the opinion that, if there were basis for plagiarism-related legal action, the relevant parties would have already acted by now.
I would normally agree, but in this case, well, it’s Pokémon and Nintendo, so who knows. Maybe legal action is coming, maybe not. If it does come, however, it should fail. And fail miserably. All because of the idea/expression dichotomy.
A year ago, we wrote about an unfortunate decision by a judge rejecting a motion to dismiss in a copyright lawsuit regarding bananas taped to walls. There was, of course, the high profile “banana taped to wall” artwork by Maurizio Cattelan that got tons of public attention at Art Basel in 2019 when it sold for $120,000 (and when someone walked over and pulled it off the wall and ate it, in a bit of counterprograming). Cattelan was the defendant in this lawsuit as some other guy, Joe Morford, claimed that he had done it first with an artwork called “Banana & Orange” and that Cattelan’s banana (which, officially, was called “Comedian”) infringed on his work.
As we noted all of this was ridiculous. Copyright applies to the specific expression, not the idea, and nothing in this came even close to being infringing. It surprised us that the judge rejected the motion to dismiss, though as we noted in the original article, that didn’t mean the case wouldn’t ultimately get dismissed. It’s just that first they’d have to go through discovery.
And, now that’s happened, and both sides filed for summary judgment, leading the judge to finally get it right and dismiss the case. In rejecting the motion to dismiss, the judge said that Morford’s claims that Cattelan had “access” to the original work via the internet were enough, but after discovery, the judge says Morford needs to show more and did not:
Morford argues that Cattelan had a reasonable opportunity to view Banana and Orange because it has been posted on the internet for several years. He asserts that his work “has been available on YouTube since July 18, 2008, on Facebook since July 29, 2015, and on Blogpost since July 2, 2016.”… Based on the fact that Banana and Orange has been “verifiably viewed worldwide over a span of approximately 10 years prior to the appearance of [the] [D]efendant’s piece,” Morford argues by implication that access can, at this point, be presumed….
But mere availability, and therefore possibility of access, is not sufficient to prove access. Herzog, 193 F.3d at 1249. “[M]ere speculation and conjecture” are insufficient to sustain a finding of access. Id. A plaintiff cannot prove access only by demonstrating that a work has been disseminated in places or settings where the defendant may have come across it. Id. at 1249-52 (holding that some “nexus” between the plaintiff and the defendant is required to establish an inference of access where the plaintiff’s work was disseminated in a setting where the defendant may have come across the work). And, despite the Plaintiff’s arguments to the contrary, whether a work has caught on in popularity is a viable consideration in determining access. Watt v. Butler, 457 F. App’x 856, 859-60 (11th Cir. 2012) (holding that the plaintiff could not prove a finding of access where there was “no evidence that ‘Come Up’ [the plaintiff’s allegedly infringed song] ever caught on in popularity” or that the song or the performing group ever “became a commercial success.”). A work’s mere presence on the internet alone, then, is insufficient to demonstrate access without some additional proof that the defendant had some relevant nexus to the plaintiff’s work or that the plaintiff’s work enjoyed some meaningful level of popularity….
The Plaintiff puts forward no evidence here supporting a reasonable opportunity for Cattelan to have viewed Banana and Orange. His evidence amounts to no more than proof that his work was available on one Facebook post, one YouTube video, and one blog post…. Nowhere is Morford able to demonstrate that Banana and Orange enjoyed any particular or meaningful level of popularity; in fact, the evidence cited supports the opposite finding, that it remained a relatively obscure work with very limited publication or popularity. … Nor is Morford able to demonstrate any particular nexus between Cattelan and himself. Instead, the only record evidence relating to any connections between the two is Cattelan’s clear statement that he had never heard of Morford until this lawsuit.
But, more importantly, the point that we raised originally: nothing in the similarities between the two pieces of “art” are protectable under copyright. The similarity is the concept, not the actual expression. And the court gets that, and goes deep on the merger doctrine which says, loosely, that if certain ideas (unprotectable) can only be expressed in a very limited number of ways, you can’t then claim it’s infringing if others express the same idea in a somewhat similar way. In short, the court makes it official: there’s really only one good way to tape a banana to a wall artistically:
The method chosen by both Morford and Cattelan—the “X” shape of the duct tape crossing the banana in a perpendicular manner—essentially merges with the concept of taping a banana to a wall. Id. It is, to put it bluntly, the obvious choice. Placing the tape parallel with the banana would cover it. Placing more than one piece of tape over the banana, at any angle, would necessarily obscure it. An artist seeking to tape a banana (or really, any oblong fruit or other household object) to a wall is therefore left with “only a few ways of visually presenting the idea”—all of which involve a piece of tape crossing the banana at some non-parallel angle.
And thus, the taping a banana to a wall in this manner is not protectable under copyright.
Where does this leave the Court’s filtration analysis? Effectively, it removes from consideration the largest and most obvious abstracted element of Banana and Orange: the “banana [that] appears to be fixed to the panel with a piece of silver duct tape running vertically at a slight angle, left to right.” (Order Denying Mot. Dismiss at 10.) This expression is not protectible under the merger doctrine.
The judge does push back on the argument from Cattelan that nothing in Morford’s work is protectable, noting that there are some other artistic choices that are:
There are still protectible elements of Morford’s work: (1) the green rectangular panel on which the fruit is placed; (2) the use of masking tape to border the panels; (3) the orange on the top panel and banana on the bottom panel, both of which are centered; (4) the banana’s placement “at a slight angle, with the banana stalk on the left side pointing up.”
But, uh, you’ll notice those are not the elements in Catallan’s piece. The court even makes a chart:
And I imagine this is the only time we’ll ever see a court utter the following bolded phrase:
Reviewing these elements as a whole, it is clear that Banana and Orange and Comedian share only one common feature that the Court has not already set aside as unprotectible: both bananas are situated with the banana’s stalk on the left-hand side of sculpture. This solitary common feature is, on its own, insignificant and insufficient to support a finding of legal copying.
Afterwards, the judge admits that the merger doctrine would get in the way anyway:
And the placement of the banana’s stalk (on the right-hand side of the sculpture versus the left, or vice-versa) would be another element subject to the merger doctrine anyway: there are only two ways the stalk may be placed, to the right or to the left
The judge goes even further:
Morford makes much of the fact that the bananas’ angles are relatively similar, but this point actually works against him. There are only so many angles at which a banana can be placed on a wall (360, to be precise, unless one breaks the measurements down beyond degrees—but making such a minute distinction would be reaching a point of absurdity best left out of the courts and in the hands of artists). Finding that Morford’s and Cattelan’s selections of different angles were “close enough” to reach substantial similarity would necessarily place a significant legal limit on the number of ways that a banana can be taped to a wall without copying another artist’s work. … In other words, the Court would need do that which it has already said it cannot do—find that Morford could copyright the idea of duct-taping a banana to a wall.
And, with that, we conclude a case that had already gone on too long. Taping a banana to a wall, without any of that other stuff, is not protectable under copyright.
How many times can we write about bananas and copyright? Even assuming the monkey selfie case doesn’t count, it’s come up surprisingly often here on BestNetTech. A few years ago, there was a high profile copyright case about whether or not a banana Halloween costume was covered by copyright (it was). But, this latest case is about whether or not there’s copyright in the, um, artistic display of taping a banana to a wall. Believe it or not, this is not the first case we’ve even written about regarding copyright questions around bananas taped to walls. Two years ago, we wrote about a different case, involving the copyright on photographs of bananas taped to walls, but that seemed like a pure trolling case.
As you may recall, back in late 2019, in those pre-pandemic blissful years, at Art Basel in Florida, there was a ridiculous amount of attention paid to a piece of art that was literally just a banana taped to the wall. It sold for $120,000. And there was some controversy when someone stepped in and ate the banana. The banana on the wall artwork was called “Comedian” and was created by artist Maurizio Cattelan.
But, this lawsuit was filed by Joe Morford in early 2021, claiming that “Comedian” infringed on his own work, “Banana & Orange.” The case has taken some twists and turns, including an initial default judgment against Cattelan, who did not respond to the case. Cattelan showed up in November to argue that the reason for this was that he was not properly served (the initial complaint was sent to his NYC apartment building, but Cattelan had left it and spent the first year and a half of the pandemic in Italy).
Morford, who is representing himself pro se, whined that this was all unfair and even sought to disqualify the judge for bias (generally, not a good idea) because the judge had once worked with the lawyer Cattelan had hired. None of that worked, and the default was set aside, moving the case forward.
So, this May, Cattelan filed a pretty compelling motion to dismiss noting (correctly), that copyright covers expression, not ideas, and you cannot copyright the “idea” of a banana taped to a wall.
This purports to be an action for copyright infringement. In previous filings with this
Court, Plaintiff asserted unequivocally that, “I do not assert a copyright claim to the idea of a
banana duct taped to a wall. People are free to duct-tape all the bananas they want to a wall.”
(Doc 37, at 21) (emphasis added). Yet, the Complaint tries to do exactly that: to stop Defendant
from duct-taping a real banana to a wall. In fact, Plaintiff’s only complaint is that Defendant’s art
piece, Comedian, which consists entirely of a real banana duct-taped to a wall, infringes Plaintiff’s
copyright in a diptych work of art comprised of a synthetic sculptural banana and orange fixed to
green painted paper and surrounded by masking tape.
But, Plaintiff cannot own the idea of a real
banana duct-taped to a wall. Based on well-settled principles of law, the Complaint must be
dismissed because: (1) the copyright laws do not permit “ownership” of a natural element that
exists in the world (a fruit) or a utilitarian, functional component (duct tape), neither of which
contain any original expression; (2) there is no substantial similarity between the protectable
aspects of Plaintiff’s work and Defendant’s work; and (3) Plaintiff has not – and cannot –
adequately allege Defendant’s access to Plaintiff’s work
All of this strikes me as broadly correct as copyright goes. You can’t copyright the idea of a banana taped to a wall. In theory, the only copyright protectable elements of a banana taped to the wall are the specific expressive choices that were made — perhaps the angle of the banana (weakly) and maybe some elements about how the duct tape was torn or something like that. Even then, it would seem to be a very thin layer of copyright protection.
And, again, Morton’s artwork appeared to be quite different. It did include a (not real) banana duct taped to a wall, but almost all of the actual expressive choices were different, as you can see:
Morton’s response repeats over and over again that he’s not seeking to copyright the idea, but rather is focused on the “substantial similarity” doctrine using the “extrinsic test” and the “intrinsic test.”
Now, in the past, we’ve discussed the substantial similarity doctrine, and what an absolute clusterfuck it is. Copyright infringement is only supposed to apply to actual copying. If two people come up with the same thing entirely independently, it is not supposed to be infringement at all. But, perhaps because some judges were worried that those who copied would just plead ignorance, some courts embraced these tests around substantial similarity, and an argument about whether or not the accused had access to the original work to effectively say they must have copied it. It’s a problematic doctrine, but one still used by many courts.
And yet, unfortunately, last week, the judge rejected the motion to dismiss and allowed the case to move forward. That doesn’t mean that Morford will win in the long run, but it’s not great for Cattelan. I’ve seen some copyright lawyers suggesting they were convinced by the judge’s reasoning, but I think it’s very, very mistaken. It also includes some factual errors.
Can a banana taped to a wall be art? Must art be beautiful? Creative?
Emotive? A banana taped to a wall may not embody human creativity, but it
may evoke some feelings, good or bad. In any event, a banana taped to a wall
recalls Marshall McLuhan’s definition of art—“anything you can get away with.”
To that end, bananas have come to represent a type of irreverence in pop
culture—from vaudeville to Andy Warhol, artists have wielded bananas to
expand the boundaries of art.
Add to that list Joe Morford, an artist from Glendale, California. In 2000,
Morford registered his work “Banana & Orange” with the Copyright Office. (ECF
No. 1 at 8.) While Morford does not allege how widely this work was
disseminated, it appears that Banana & Orange was accessible on Morford’s
website, as well as through the social media platforms Facebook and YouTube.
(ECF No. 50 at 26.)
So, first off, in what may feel inconsequential, the judge is wrong about the registration date of Morford’s work. While he claims it was created in 2000, the registration only happened in 2020 (after Cattelan’s artwork went viral):
The registration was included with the lawsuit, and it seems weird for the judge to miss that fact. Of course, it’s possible that doesn’t actually matter as much in this case. Normally, in many copyright cases arguing for statutory damages, it would matter, but Morford is explicit that he’s asking for actual damages (though how he defines them is weird), so in theory it doesn’t matter as much. Still a weird one for the judge to miss.
As for the actual analysis, the judge properly notes that Morford needs to show that Cattelan actually copied his work and that the parts that were copied were protectable under copyright. The judge then goes on a long discussion about the substantial similarity doctrine and both the extrinsic and intrinsic tests. However, the court does properly note that the court has to break down the work into its structural parts, and then determine which parts are protectable elements and which are not. This is correct… and it should have resulted in the judge noting that nothing protectable was copied here. There are bananas, but they are different. There is duct tape, but it is different. There is fruit taped to a wall, but that is an idea, and not protectable. There is the angle of the banana and the duct tape, but they are different. There are walls, but they are different.
I don’t see how any protectable elements are copied here. But… the court says otherwise, basically arguing that even if the idea of taping a banana to a wall is not protectable… the “absurd and farcical” nature of taping a banana to a wall is a form of creative expression. Really.
Copyright protection only extends to arrangements that are
unique and original. See Corwin, 475 F.3d at 1251 (“[A] work may be protected
by copyright law when its otherwise unprotectable elements are arranged in a
unique way.”). Heralded as the “sine qua non of copyright,” originality requires
consideration of the creativity involved in the arrangement of unprotectable
elements, as well as whether the arrangement is “firmly rooted in tradition” or
too “commonplace.” See BellSouth, 999 F.2d at 1440 (discussing Feist, 499
U.S. at 348, 363). But judges are not deputized art critics, and the originality
bar is appropriately low. See Bleistein v. Donaldson Lithographing Co., 188 U.S.
239, 251 (1903) (“It would be a dangerous undertaking for persons trained only
to the law to constitute themselves the final judges of the worth of pictorial
illustrations, outside of the narrowest and most obvious limits.”); see also
Original Appalachian, 684 F.2d at 824 (“No matter how poor artistically the
author’s addition, it is enough if it be his own.”) (quoting Alfred Bell & Co. v.
Catalda Fine Arts, Inc., 191 F.2d 99, 103 (2d Cir. 1951)). Therefore, the
“requisite level of creativity is extremely low; even a slight amount will suffice.”
See Feist, 499 U.S. at 345.
While using silver duct tape to affix a banana to a wall may not espouse
the highest degree of creativity, its absurd and farcical nature meets the
“minimal degree of creativity” needed to qualify as original. See Feist, 499 U.S.
at 345; see also Kevin Harrington Enters., Inc. v. Bear Wolf, Inc., No. 98-CV1039, 1998 WL 35154990, at *6 (S.D. Fla. Oct. 8, 1998) (Ungaro, J.) (noting
that originality involves “the author’s subjective judgment in giving visual form
to his own mental conception”) (citing Burrow-Giles Lithographic Co. v. Sarony,
111 U.S. 53, 60 (1884)). While the Court cannot—and need not—give meaning
to Banana & Orange, at this stage the Court holds that Morford’s choices in
giving form to Banana & Orange are sufficiently original.
This seems both wrong and potentially very problematic for copyright law. Basically, it’s creating an exception to the idea/expression dichotomy in copyright law, by saying that if the idea is particularly absurd, literally, then it gets copyright protection.
And that can’t be correct.
Later, in the substantial similarity analysis, there’s another chance for the court to note that there were no protectable elements copied, but again, the court chooses not to:
While Morford is afforded no protection for the idea of a duct-taped
banana or the individual components of his work, Morford may be able to claim
some degree of copyright protection in the “selection, coordination, [and]
arrangement” of these otherwise unprotectable elements. See Off Lease, 825 F.
App’x at 726 (discussing copyrighted works “formed by the collection and
assembling of preexisting materials . . . that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an
original work of authorship”) (quoting 17 U.S.C. § 101)). In particular, Morford
can claim some copyright protection in the combination of his choices in color,
positioning, and angling. See Off Lease, 825 F. App’x at 727 (holding that
copyright protection extended to “the outline, the [component’s] shape, and the
elaborate color scheme”); see also Corwin v. Walt Disney Co., No. 6:02-cv-1377,
2004 WL 5486639, at *16 (M.D. Fla. Nov. 12, 2004) (holding that an “artist’s
selection as to how the [model pieces] were arranged in the painting, the colors
associated with the elements, and the overall structure and arrangement of the
underlying ideas” are protectable) (citing Leigh, 212 F.3d at 1216).
But once we’ve hit that point, Cattelan has basically already lost. The court notes that from there, the substantial similarity test is generally an issue of fact, meaning that it should go to a jury. The court still does a quick analysis of the rest of the substantial similarity test, including whether or not Cattelan had “access” to Morford’s work, and again that’s problematic. Morford says his artwork has been online in various places, starting with YouTube in 2008, and then Facebook in 2015, and then his own website in 2016. Cattelan points out that just putting your work on the internet doesn’t mean that he had access to it. But the court basically says it’s too early to make that call.
Indeed, it seems like the court should have taken more notice of the fact that just putting things on the internet does not automatically mean everyone viewed it. Aaron Moss points out Morford’s claims regarding access are without much support, and Moss himself shows that while Morford’s work was online, it certainly does not appear that very many people ever viewed them:
In addition to the 2015 Facebook post that I showed above (which was “liked” by five people), I also found a 2008 YouTube video featuring Morford’s work on a YouTube channel page for an account called “lobsterparlorart.” The channel has all of 11 subscribers, and the video featuring Banana & Orange is one of dozens of artworks displayed on the nine minute video. You can check it out below at about one minute and eight seconds in, but the banana is displayed for less than a second, so don’t blink or you’ll miss it:
Below is a screenshot of Morford’s banana making its big reveal. At the time I watched, the video had received only 499 views in the past 14 years, three of which were from me as I was trying to find the banana:
While it’s possible that Cattelan was one of a vanishingly small number of people to see Morford’s work, it seems… unlikely at best. And, at the very least, the court should have required more than just “it was online” to hit the “access” part of the substantial similarity test.
The court also notes that Cattelan’s lawyers probably should have raised the merger doctrine, which basically says there are only a few ways in which this particular idea can be expressed — which would seem to apply here. But… Cattelan didn’t raise the issue and so the court refuses to consider it:
Of course, there are only so many choices an artist can make in colors,
positioning, and angling when expressing the idea of a banana taped to a wall.
In general, this is called the merger doctrine—where the idea and the
expression of that idea merge. See BUC Int’l, 489 F.3d at 1142 (holding that the
merger doctrine “provides that ‘expression is not protected . . . where there is
only one or so few ways of expressing an idea that protection of the expression
would effectively accord protection to the idea itself’”) (quoting BellSouth, 999
F.2d at 1442)). However, Cattelan did not argue that the merger doctrine
applies (ECF No. 53 at 14 n.8), so the Court will not consider whether the
merger doctrine precludes any finding of infringement here.
But that also seems wrong to me. The merger doctrine is considered part of the idea/expression dichotomy, which Cattelan did raise, so it seems that the court could have and should have looked at it. Though, yeah, it might have been better if Cattelan’s lawyers brought up that doctrine directly, it still seems that the court could have noted it as part of its idea/expression analysis.
Anyway, the court decides that there’s enough here for the case to move forward, and thus… it moves forward. It seems like a bad situation for the whole idea/expression dichotomy, so what happens next will be worth paying attention to. Of course, this is the stage where many similar cases settle, but it would be useful to get a court to really point out how bad this decision actually is.
Could Paramount Pictures have actually lost the copyright to Top Gun, even as it was releasing a new Top Gun movie? That’s the claim in a new lawsuit that goes pretty deep into the copyright weeds, touching on two ridiculous topics that we like to write about on BestNetTech: termination rights and movie rights.
For many years now, we’ve talked about the confusing mess that is copyright termination rights. The whole concept behind them is a bit bizarre, and it’s sort of an attempted escape valve to try to justify why copyright terms are so ridiculously long and why most copyrights are forced out of the hands of actual creators into giant intermediaries like record labels or movie studios. The idea behind termination rights, in theory, is that it allows the actual creator to reclaim the copyright after 35 years.
Of course, for decades now, the legacy copyright industry, which has benefited so much from never-ending copyright combined with their ability to strong arm young and innocent creators into handing over their copyrights, has been fighting against termination rights, trying to make them impossible to exercise, and playing other sketchy games (the biggest such game, of course, was back when the current CEO of the RIAA was a congressional staffer, and snuck a few words into an unrelated bill in the middle of the night in order to strip musicians of their termination rights — something to remember every time the RIAA pretends its sticking up for artist rights).
Anyway, in most termination rights fights, there is no one to cheer for. The whole thing tends to be a lame money-grab on all sides, though in most cases, I’d rather the actual creator end up with the copyrights. The lawyer who has probably done the most to exercise termination rights for creators is Marc Toberoff, who we’ve written about a few times before. And when he teams up with the former Chief Judge of the 9th Circuit, Alex Kozinski, to file a lawsuit, you should probably take it seriously.
And that’s why I’m kind of shocked that the lawsuit here… is… so weak.
The lawsuit in question, as first highlighted by Eriq Gardner at Puck News, is a claim by Shosh and Yuval Yonay against Paramount Pictures, to argue that the new Top Gun movie is a copyright violation. The history of this case is a bit involved. In 1983, Ehud Yonay wrote an article called “Top Guns” for California magazine. The story was about a naval training base where Navy pilots were trained. Shosh is Ehud’s widow. Yuval is their son. So this is yet another one of these lawsuits in which the heirs of an artist are trying to cash in. Anyway, Ehud wrote the article, and the article got some attention.
Paramount then licensed the story and used that as part of the basis for the popular, highly quotable to an annoying degree, 1986 film “Top Gun” starring Tom Cruise, Kelly McGillis, Val Kilmer, Anthony Edwards and a bunch of others.
So, here we get into the issue of movie rights. As we’ve discussed, they’re sort of a bizarre subspecies of copyright. You cannot copyright facts. And most movies based on magazine articles don’t actually copy any of the copyright protected prose of the article. And so “movie rights” is really just a kind of insurance policy. It tends to do two things: (1) prevent the original article writer from making a stink about how unfair it all is, and (2) possibly, though not always, getting the writer to at least help out a bit on the movie story to make sure it makes sense. And that’s it. There isn’t much in the way of actual “rights” involved, because the movies rarely have much to do with the actual material that is covered by the copyright.
And, indeed, that appears to be the case with the “Top Guns” story, which was not about Maverick and Goose, but as the complaint itself points out, two actual pilots with totally different nicknames.
Rather than
focusing merely on the dry historical details of the training school, the Story
focuses on the pilots (the “Top Guns”) and their personal experiences, singling
out two in particular, a hotshot pilot (“Yogi”) and his radio intercept officer
(“Possum”), as they are hammered into a team. It skillfully selects accounts of the
pilots’ personal lives and precise details of their “hops” (flight maneuvers) to
construct a romanticized, first-hand experience of what it is like to be a member
of an elite Navy fighter squadron.
So, let’s be clear here. Nowhere is it even suggested that the original movie even copied much from the original article. The name was slightly different, but the characters were very different. And while the complaint notes that both the story and the movie gave “accounts of the pilots’ personal lives” and “precise details of their ‘hops,'” note that the complaint does not suggest that the accounts in the movie copied any of the copyright protected content of the original story. Instead, they just presented a similar concept and idea, but as we keep pointing out — and as Kozinski damn well knows — you can only copyright the specific expression, not the idea.
To try to get around this astounding level of weakness in the case Toberoff and Kozinski argue, fairly weakly for two such lawyers, that the movie is a “derivative work” of the original story. And, then, that the new Top Gun: Maverick movie is a derivative work of the first movie. And… then that a few years back, when the termination period opened up, the Yonay’s terminated the copyright assignment they had originally granted Paramount for the original movie.
Of course, this also gets to another mess in copyright law that we love to cover: the mess of derivative works. Derivative works sometimes mess up the whole idea/expression issue, because often a “derivative work” is not a copy of any of the actually protected parts of the original work. But… um… usually it’s more than this. Usually it involves at least characters that the author can claim were covered by copyright.
Here, there’s none of that. There isn’t even an attempt to argue that anything was actually copied. There’s just a bunch of handwaving, which looks really bad for both Toberoff and Kozinski, and from whom I’d expect better. At best, this feels like something of a shakedown to just try to get Paramount to pay up to avoid embarrassment. At worst, this feels like a crapshoot lawsuit from the two lawyers, hoping they can somehow get this in front of a jury to razzle dazzle them with claims about big bad Hollywood “stealing” from this poor family.
These are big time lawyers who know what they’re doing, but it seems like a ridiculously weak lawsuit, and little more than an attempt to cash in on the new movie.
Of all the areas that result in copyright lawsuits that never should have been filed, it surely must be ignorance of the idea/expression dichotomy that is the most common. That link will take you to a litany of posts about copyright fights in which one party sues another over elements of a creative work that are themselves not protectable. The basic explainer goes like this: the specific expression of a work, or even the specific expression of unique thematic or character elements, can be protected by copyright, whereas mere general ideas cannot. This is why Batman is a copyrightable character, but that copyright cannot be used to sue the hell out of anyone that writes a story about an insane rich person who wears a cape and cowl while fighting bad guys. Idea versus expression.
It’s crazy just how many lawsuits get filed by full grown adult lawyers who don’t seem to understand this. One recent example is a lawsuit brought by a high school English teacher against Netflix over the latter’s series, Outer Banks. The suit was tossed at the motion to dismiss stage, with the court reasoning that the majority of the 40-plus claims of infringement amount to either non-protectable ideas, or allegations that amount to mere coincidence that has nothing to do with copying anything at all. On the first of those:
In a 25-page opinion, U.S. District Judge Timothy C. Batten Sr. said Kevin Wooten’s 2016 book “Pennywise: The Hunt for Blackbeard’s Treasure!” had a significantly different plot, characterization, mood, pace and settings than the Netflix original.
“To be sure, both works involve shipwrecks and treasure hunts,” Batten said. “But to analyze their plots at such a high level of abstraction would render every work involving a hunt for buried treasure susceptible to copyright infringement.”
It’s a useful high-level takeaway on the majority of issues with the lawsuit, but it’s worth noting that the court did in fact do a deep dive on each of the claims made. Not all of them amount to generic story ideas such as the above. While the actual plotlines and characters are very, very different — a different number of main characters, different treasures being hunted for by those characters, different outcomes, etc. — , some of the claims detailed out in the dismissal are downright absurd.
As a preliminary matter, many of Wooten’s purported similarities either do not exist or are “random similarities” that “could be found in very dissimilar works.” Beal, 20 F.3d at 460 (quoting Beal, 806 F. Supp. at 967 n.2). For instance, he argues that “both Works clearly sought to invoke an avian theme at the mausoleum.” [19] at 14. He points out that in his novel, Nathan and Ben find a clue hidden in the wing of a bird statue at a mausoleum. He argues that this plot device is substantially similar to the protagonists’ discovery in Outer Banks of a clue labeled “For Bird.” But the bird reference in Outer Banks is merely a callback to the nickname John B’s father gave him as a child. The fact that the word “bird” is present in both narratives is entirely innocuous and of no significance in an infringement analysis.
It goes on from there, including where the court looks at the actual main characters of each work, claimed by Wooten to be substantially similar, and concludes:
In sum, the characterization in the novel is in stark contrast to that of the series. The Outer Banks characters are complex, with narratives that cause the viewer to at times sympathize with even the most nefarious individuals. In the novel, on the other hand, the naïve Pennywise twins and their uncle serve as prototypical hero figures while Darwin acts as a classic villain.
Without trying to, the motion to dismiss doubles as something of a literary review, albeit one rather unkind to Wooten’s novel.
The real point of all of this is that what should be common sense ought also to be better understood among attorneys willing to file copyright lawsuits on behalf of clients: you cannot copyright general ideas, tropes, nor the obvious story elements that grow from either. Treasure hunts are as tropish as they come, frankly, and attempting to silence an entirely unrelated creative work simply because of “avian themes” and the like is nonsensical.
