Creative works have always been a fertile source of copyright claims, especially in the entertainment media arena. We remember the time a company introduced a new cartoon character. In addition to cartoon segments for television, the company licensed dolls and dozens of other children’s toys, clothing and videos based on the character. The children’s market was flooded by the image of this cartoon child.
In no time, half a dozen lawsuits were filed in courtrooms around the country, with each plaintiff alleging that he or she had invented the fantasy character and that the company had stolen their idea, or their expression of an idea. We had our own fantasy for that case – to drag all the plaintiffs into one courtroom and have them slug it out with each other. Surely, we thought, even if the idea had been taken, only one plaintiff could prevail. What fun it would have been to see a courtroom contest between the plaintiffs, each claiming they were the originator and the others were frauds.
That is not to suggest that there are not legitimate claims of infringement and misappropriation. But it is sometimes interesting to see the intellectual property claims involving creative works. Check out these recent cases involving an epic scheduled for release this summer and a rapper’s right to “back that ass up.”
“Kingdom of Heaven” is a movie epic about the Crusades that is planned for release this summer.
“Warriors of God: Richard the Lionheart and Saladin in the Third Crusade” is a book about the Crusades.
The book’s author has accused the film’s director and studio of taking his research for the movie. The author alleges he worked for three years to gather material for his book, and that some of the material surfaces in the movie.
His allegations raise interesting issues. Facts, such as historical facts, ordinarily cannot be copyrighted, just as ideas cannot be copyrighted. But one can copyright the expression of an idea. For example, if one creates a list of historical places to see in Washington, D.C., it may well be protectable under copyright law. This is because the selection of places to tour, the order in which they are presented and the information about each site that is included with the list involves at least some level of creativity.
Returning to the movie at hand, if one selects historical facts and presents them in a certain way, showing at least some creativity, the expression of those facts is protectable under copyright law, while an individual fact itself is not protectable.
The author, James Reston, Jr., alleges that the movie used characters, scenes and events that were “strikingly similar” to elements in his book. He believes his research and book brought out obscure details from that period of history, and the movie also settled upon some of those people and events. An attorney for the studio has denied that the works are substantially similar. The lawyer says the only things similar between the book and the movie are that they contain some common elements that are historically authentic.
Another recent dispute involving two rap musicians made its way to the Fifth U.S. Circuit Court of Appeals. At issue was the song and phrase “Back that Ass Up.”
D.J. Jubilee recorded “Back that Ass Up” in 1997. The same year Juvenile recorded “Back that Azz Up.” Juvenile’s song was a hit. Jubilee’s wasn’t. Several years later Jubilee’s recording company applied for a copyright registration on his song and promptly sued Juvenile and his recording company for copyright infringement.
A jury found against the Jubilee claim just about every way it could. It decided Jubilee’s recording company had not shown Juvenile had copied Jubilee’s song, that to the contrary Juvenile did prove that he independently created his song and that the songs were not substantially similar to begin with. The jury also found against Jubilee’s recording company on two other claims. The court then ordered the plaintiff to pay some of the defendants’ attorney’s fees.
On appeal to the Fifth Circuit, one of the issues was whether the jury had been given improper instructions by the judge. The plaintiff felt the court had led the jurors to believe they were to compare the two songs as a whole to decide if they were substantially similar when they actually could and should focus on specific elements of the two songs, such as the phrase “back that ass up,” rather than the similarity of the songs in total. The appeals court affirmed the jury’s verdict and the court’s award of fees to the defendants.
These examples are perhaps just the tip of the iceberg when it comes to copyright infringement cases involving entertainment media risks. While there’s nothing new we’ve seen in the area of copyright infringement coverage under media liability policies, it continues to be a good idea to secure a few “extras” for your clients in the entertainment biz. For example, many media insurers do offer Claims Expense Outside the Limits options and/or an option for the insured to select their own counsel. While these provisions do not impact the tenor of the copyright infringement coverage itself, they could certainly lighten the financial impact and uncertainty that arises when facing copyright infringement suits.In the cases involving the TV cartoon character, naturally we weren’t able to bring the plaintiffs into the same courtroom. We and the insured had to resist each case in isolation, and the plaintiffs probably were never even aware that others were also claiming to have created the same character they claimed as their own.