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.
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