Producer Threatens CHIRAQ: Copyright Violation or Publicity Stunt?

by Katherine Imp

Recently, with CHIRAQ gearing up for its December 4th debut, producer Roderick Powell accused Spike Lee of copyright infringement, claiming that Lee’s new film has the same “look and feel” of his 2003 feature, A MIAMI TAIL.

Let’s not beat around the bush: A MIAMI TAIL and CHIRAQ are similar. They are both contemporary versions of the Greek comedy, Lysistrata. They both have a female lead and a predominantly black cast. And most notably, they both tell the story of women withholding sex from their men to stop gun violence. But is this enough to constitute copyright infringement?

First, a lesson in copyright infringement:

To establish copyright infringement, the plaintiff must prove: (1) that he, she or it has a valid copyright; and (2) that the defendant copied original elements from the plaintiff’s copyrighted work.

Second, a lesson in Greek mythology:

In Athens, circa 411 BCE, Aristophanes wrote a story about Lysistrata, a woman who attempted to end the Peloponnesian War by persuading Greek women to withhold sex from their men until peace was negotiated.

Third, a lesson in public domain:

The public domain is a realm of material that is unprotected by intellectual property rights. In other words, you can copy the original work of another person or entity without his, her or its permission.

The realm of material in the public domain can be divided into many categories. The most pertinent categories to our fact pattern include:

• Materials that were previously copyrighted but whose terms have since expired;
• Materials that predated intellectual property law; and
• Material that is not protectable under copyright law such as ideas, genres and themes.

In the United States, a copyright term is life of the author plus 70 years, or, if the author is a corporation, 95 years.

Now for an analysis of the facts:

• Powell needs to prove that he has a valid copyright in A MIAMI TAIL.

Typically, a copyright registration certificate from the US Copyright Office will suffice. Here, a quick search on the US Copyright Office database links RAP Filmworks, LLC, Maverick Entertainment, Inc. and Lions Gate Films, Inc. to the film’s copyright, so further investigation is needed to determine whether Powell actually meets this first requirement.

• Powell needs to prove the Lee copied elements of A MIAMI TAIL and that such copying was improper under copyright law.

This element can be proven through direct evidence, such as witness testimony, the defendant’s own admission, or photos or video catching the defendant in the act. More commonly, however, copying is demonstrated through circumstantial evidence, such as access to the plaintiff’s work and probative similarities between the works. The type of similarity that is generally regarded as the most “probative” of copying is the existence of common errors, whether factual or aesthetic in nature, between the two works.

Without having seen CHIRAQ, I cannot comment as to the probative similarities between it and A MIAMI TAIL. But if we circle back to the facts above, I’d argue that Powell’s accusations against Lee are nothing more than a publicity stunt. The crux of the story – a woman who told other women to withhold sex from their men to stop the violence surrounding their community – is, if anything, original to Aristophanes. And Aristophanes’ work is in the public domain.

The similarities in genre (comedy) and theme (urban gun violence) also fall within the public domain and are therefore not copyrightable by Powell.

As I see it, Powell saw an opportunity to get more eyeballs on his film by hinting at the overarching similarities between it and a film that is and will be receiving a lot of buzz in the upcoming months. Either that, or he really needs to read up on copyright law.

Katherine Imp is a transactional entertainment attorney at Cummins & Associates, Ltd., specializing in production legal, film finance and intellectual property matters. Contact Katherine at @KatherineImp or kimp@cumminsassociates.com.

Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.

To see the original post, and similar articles, check out Katherine Imp’s SCREEN Magazine column, Street Legal.

Nobody Puts Your 401K in the Corner: Should Dirty Dancing IP Prevail?

by Katherine Imp

Did this title make you think of the 1987 film, Dirty Dancing?

Unless you’ve been living under a rock for 28 years, the answer is probably yes. According to the American Film Institute, “nobody puts baby in a corner” is one of the top 100 greatest movie quotes of all time.

Unfortunately for TD Ameritrade, the creator of “nobody puts your old 401(k) in the corner,” popular quotes generate revenue. And Lionsgate has no intention of giving TD a free pass.

TD Ameritrade’s Dirty Dancing ad spoof ran for seven months before TD received a cease and desist letter from Lionsgate, coupled with a 7-figure settlement demand. On June 26, TD fought back, filing for declaratory relief against Lionsgate in the Southern District of New York. Lionsgate responded by filing its own lawsuit on July 2 in the Central District of California, asserting claims like false association, unfair competition, trademark infringement and trademark dilution.

Who should win?

There is no question that Lionsgate has protection under copyright law. Lionsgate copyrighted the motion picture back in 1987 when Dirty Dancing was first released. However, the Supreme Court has unequivocally held that a “parody” qualifies as fair use. Meaning, TD can use some elements of the film Dirty Dancing without Lionsgate’s permission so long as the use qualifies as a parody.

Trademark law is a little trickier. Trademark law seeks to prevent confusion among consumers as to the origin, sponsorship or approval of goods or services. As a result, the central issue in every trademark infringement case is the likelihood of consumer confusion.

Unlike copyright law, parody is not a defense to a claim of trademark infringement. Instead, the “likelihood of confusion” test requires an analysis of several factors, including freedom of expression concerns.

Last fall, Lionsgate filed trademark applications with the USPTO for use of the quote “nobody puts baby in a corner” in connection with various goods (e.g., paper-based items, clothing, glass and household items). This filing took place one month before the TD ad was released.

In its complaint, Lionsgate also argued that its common law trademark rights (rights to a trademark not registered with the USPTO) date back to 1987.

That said … I’m with TD on this one. For one, TD’s “use” of the Dirty Dancing quote is in connection with the financial services industry, not the goods encompassed in the trademark applications filed last fall. Secondly, TD’s “use” of the quote was intended to amuse, not confuse. In fact, I’d further argue that because the quote is so recognizable, consumers would actually have an easier time distinguishing between a parody and the original.

However, I also understand why Lionsgate won’t back down until it receives a 7-figure settlement check from TD Ameritrade. Lionsgate is an entertainment conglomerate whose sole value is in its intellectual property rights. Giving TD a free pass, regardless of whether the use was proper or improper, opens the door for other third parties to push the boundaries between fair use and infringement.

Whether or not these powerhouses decide to settle or battle it out in court remains to be seen, but one thing is for sure: Nobody puts Lionsgate in a corner.

Katherine Imp is a transactional entertainment attorney at Cummins & Associates, Ltd., specializing in production legal, film finance and intellectual property matters. Contact Katherine at @KatherineImp or kimp@cumminsassociates.com.

Disclaimer: The information in this post is intended for general information purposes only and should not be construed as legal advice.

To see the original post, and similar articles, check out Katherine Imp’s SCREEN Magazine column, Street Legal.