Matthew Fulks, an independent filmmaker, had filed a
copyright infringement suit against Beyoncé on June 8, 2016, claiming that the trailer (the Trailer) for
her “Lemonade” movie (the Movie),
which accompanied the April 2016 release of her Lemonade album, infringed on his copyright in the short movie Palinoia. Fulks created the seven-minute Palinoia movie in 2014, which the Seconded Amended Complaint (SAC)
describes as “carefully selected but seemingly unrelated visuals in a rapid
montage, with the recitation of a poem used as voiceover against a distinctive
audio soundtrack.” The short movie “depict[s] the pain of a tumultuous
relationship.”
On September 12, 2016, Judge Rakoff from the Southern
District of New York (SDNY) granted Beyoncé’s motion to dismiss, writing a thoughtful
and entertaining opinion, where Voltaire, Oscar Wilde, the Beatles, Tchaikovsky,
Andy Warhol and Taylor Swift all made an appearance. The case is Matthew Fulks
v. Beyoncé Giselle Carter-Knowles, Sony Music Entertainment and al.,
1:16-cv-04278-JSR.
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| Judge Rakoff's Opinion is Hot Stuff |
Elements of a
Copyright Infringement Suit
If there is no direct evidence of copying, then plaintiff in
a copyright infringement suit must prove that the defendant had access to the
protected work and that there are substantial similarities of protectable
material in the two works.
Plaintiff claimed that Defendants had access to his movie,
as Plaintiff had submitted Palinoia
to Defendant Sony/Columbia in July 2015, as part of an application for a
directing job, and its receipt was acknowledged by email. Defendants did not
deny this.
Plaintiff further alleged in the SAC that the Lemonade Trailer was substantially
similar to Palinoia, including, but
not limited to its “visual and auditory elements, visual and auditory
sequences, themes, format, mood, setting, plot, and pace, all of which create a
protectable total concept and feel” and that it was an unauthorized derivative
work.
Judge Rakoff quoted the Second Circuit Yurman Design, Inc. v. PAJ, Inc. case,
which defined substantially similar works as works which an "ordinary
observer, unless he set out to detect the disparities, would be disposed to
overlook them, and regard [the] aesthetic appeal as the same,” and the Second
Circuit Peter F. Gaito Architecture case, which explained that the courts
apply the substantial similarity test by "compar[ing] the contested
design's total concept and overall feel with that of the allegedly infringed
work… as instructed by our good eyes and common sense."
No Substantial
Similarity in the Visual Elements
Plaintiff alleged that the Trailer contained nine visual
elements substantially similar to Palinoia’s
visual elements. These elements are (1) a head down near a graffiti wall; (2)
red persons with eyes obscured; (3) parking garage; (4) stairwell; (5) black
and white eyes; (6) title cards screen; (7) grass scene; (8) feet on street;
and (9) side-lit ominous figures. The SAC has side-to-side screenshots from
both works illustrating the allegations.
Judge Rakoff engaged in an analysis of these nine elements,
but was not convinced that the Trailer infringed Palinoia. Instead, “[o]nce stripped of unprotected elements and
scenes a faire, these scenes from Palinoia and the Trailer and Film have very
little in common.”
Not the Same Aesthetic
Feel
Judge Rakoff was not convinced as “Plaintiff's alleged
similarities consist almost entirely of clearly defined ideas not original to
plaintiff and of stock elements with which even a casual observer would be
familiar. Moreover, to the very limited extent that there are even any
superficial similarities, these are overwhelmed by the works' vastly different
creative choices and overall aesthetic feel.”
Judge Rakoff quoted the SDNY LaChapelle
v. Fenty case, where the court explained that “[o]riginality in
rendition may reside in the photographer's selection of lighting, shade, lens,
angle, depth of field, composition, and other choices that have an aesthetic effect
on the final work." In other words, you can have the idea of filming a
parking garage, a grass scene or a distressed person heads down near a graffiti
wall, but it is the expression of this idea which is protected, not the idea
itself. As both works had been expressed in different ways, there were not
similar.
For example, as explained by Judge Rakoff, when analyzing
the first visual element claimed as original by plaintiff, a person seen head
down near a graffiti wall, the concept of a "state of distress" is an
unprotected idea, and it “flows naturally and necessarily that a distressed
character would be leaning (as opposed to dancing) against something stable (as
opposed to delicate) and that his or her head would be down (as opposed to up.)”
Instead, what was essential as to whether there was infringement is the
comparison of the way the two scenes were filmed. Because the scenes were aesthetically
different, there was no infringement.
Judge Rakoff analyzed all the nine visual elements in turn,
and found that none of them had the same aesthetic than the Trailer. Therefore,
he found them not similar with the Lemonade
Trailer scenes.
No Substantial
Similarity in the Auditory Elements
Plaintiff also alleged in his SAC that both works included
“the voiceover of a narrator reciting poetry over the sounds in the background”
and that the audio sequences of both works were substantially similar, as they
both followed “a similar pattern in which harsh noises are separated by calmer
sounds in a substantially similar time table” and both included “crescendos and
decrescendos.”
But for Judge Rakoff, “no reasonable jury, properly instructed,
could find infringement based on plaintiff's… alleged similarities… [in] the
works' audio… The idea of juxtaposing poetry and disharmonious sound is not
protectable.” Plaintiff must prove instead that the way he expressed this idea,
such as his choice of poetry and sound, has been copied. However, Plaintiff did
not prove this in this case.
Not the Same Total Concept
and Overall Feel
For Plaintiff, the mood, setting, pace, and themes of both
works were substantially similar which contributed “to the overwhelming
similarity of total concept and feel.” Both moods were “heavy, dark, and
angst-laden.’” Both settings included similar environments, such as an empty
dark parking garage, grass field, and a stairwell. The pace of both works was
“a rapid procession of short scenes or montage, interspersed with notable
intermittent pauses through exaggeratedly slow scenes.” Also, both works had
different themes “destruction, alienation, heartbreak, and chaos versus order.”
But Judge Rakoff noted, somewhat ironically, that:
“[a]pparently intent on exploring
the boundary between idea and expression, plaintiff alleges that the works
share the same narrative theme ("a struggle of a relationship") and
the same aesthetic mood and pace ("a pattern of successive montage of
abstract scenes, with unknown or unclear meanings, pieced together in 'short
takes'"). These alleged similarities fall firmly on the side of unprotected
ideas. The "struggle of a relationship" is a concept familiar to us
all, and plaintiff is not the first individual - or artist - to comment on it.
See, e.g., R. Hart-Davis, The Letters of Oscar Wilde 621 (1962) ("[H]earts
are made to be broken"); Taylor Swift, "I Knew You Were
Trouble"(2012).”
Plaintiff argued that the "race of the characters in
the [Film] is irrelevant to the total concept and feel of a film about relationships.…
Judge Rakoff wrote that the Lemonade Movie
is not just about relationships, but instead:
“depicts the protagonist's journey
from a particular perspective: that of an African-American woman in a
predominantly African-American community… The Film repeatedly references and dramatizes
generations of African-American women, and in the background of one scene, the
observer hears an excerpt from a speech by Malcolm X to the effect that the
Black woman is the most "neglected" person in America…. This all
takes place against what defendants accurately characterize as a "Southern
Gothic feel."… The settings transition between areas of New Orleans, the
abandoned Fort Macomb, and an Antebellum plantation. These significant
differences in characters, mood, and setting further distinguish the total
concept and feel in the [Lemonade] Film
from that in Palinoia.”
Plaintiff also argued that both works "portray a struggle
of a relationship; the reasons for such struggle are unclear and
irrelevant." But for Judge Rakoff, “[t]his is like saying that Casablanca,
Sleepless in Seattle, and Ghostbusters are substantially similar despite the
different motivating forces behind the struggles there portrayed (Nazis,
capitalism, and ghosts, respectively).”
Trailer, Movie, Album
Judge Rakoff remarked “that the differences in total concept
and feel are initially more pronounced between Palinoia and the [Lemonade]
Film than between Palinoia and the [Lemonade] Trailer” but that “the
difference in overall concept and feel between Palinoia and the [Lemonade]
Trailer still overwhelms any superficial similarities.”
I was surprised to read that Plaintiff claimed that the Trailer
for the Lemonade Movie had infringed
his own short movie, as it was meant to be a teaser announcement for both the Movie
and the Lemonade album. As noted by
Judge Rakoff, the Lemonade Movie “marks
the protagonist's progression through thematic headings, and narrates it with
songs from the Lemonade album.” The Trailer
shows scenes of the 58-minute Lemonade
Movie, which itself follows the sequence of the Lemonade album, which itself narrates a story, from one song to
another. There are several layers of creation behind the trailer, the
originality of which stems from both the originality of the Lemonade Movie and the Lemonade album. The hurdles of proving substantial
similarities between the trailer, a derivative work of an original work featuring
another original work, and the short film, an original work in itself, was
therefore very high.
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