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Eric Swetsky's legal column published in Marketing Magazine, July 1999
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Copyright in the Garden of Good and Evil
A look at some principles that underlie copycat advertising
Every so often, a Marketing reader writes to the magazine's distinguished editor to complain about an incident of copycat advertising. That reader will note that the underlying idea in the two ads is the same, as are the look and feel, and the reader wonders aloud whether this is legal.
A recent case from the United States nicely reviews some of the legal principles involved with that issue. However, since additional laws apply in Canada, don't jump to the conclusion that by merely changing an ad's copy, for example, you'll be out of the woods (the law, like life itself, is never that simple).
The United States case involves the movie, Midnight in the Garden of Good and Evil, based on the John Berendt book of the same title. Those who have seen the book will readily recall Jack Leigh's jacket photograph of the sculpture in Savannah's Bonaventure Cemetery, known as "the Bird Girl." The sculpture was sculpted in 1938 by Sylvia Shaw Judson, and was placed at that time in the Lucy Trosdal family burial plot.
In 1997, when Warner Bros. was in the midst of filming, Leigh asked if they would be using his photograph in connection with the film's publicity. Warner Bros. declined the invitation, saying that they would be creating their own images of the Bird Girl.
Warner Bros. obtained permission from Judson's heirs to make a replica of the sculpture, applying a weathered finish to it. They encountered problems in obtaining permission from the Trosdal family to place the replica in their plot, and decided to place it in a different location within the cemetery. When all was said and done, the Warner Bros. photograph of the Bird Girl evoked a resemblance to Leigh's photograph, and both had the same eerie look and feel. Leigh sued for copyright infringement.
Since there is no copyright in an idea, only in how one expresses that idea, the use of the same subject matter in two works does not in and of itself result in an infringement of copyright. Two people can therefore photograph the same subject. The protection granted to a photographer is in the posing of the subject, lighting, timing, the shading that evokes a desired expression, the selection and arrangement of costumes, draperies and accessories, the angles photographed from, and other such variants.
Based on these principles, the court first decided that Leigh was not entitled to copyright protection of his choice of subject matter, namely the Bird Girl in Bonaventure Cemetery. The court also said that since the sculpture had been in the same position in the Trosdale plot for some fifty years, Leigh could not claim originality in the background for his photograph. Nor could Leigh claim protection for the pose or expression of the statue, since he did not select these or alter the statue's physical appearance in any way.
The Court also decided that Leigh could not claim that the eerie or spiritual mood of the photograph was capable of protection, saying:
"statues in cemeteries are often photographed in a manner evoking an eerie or spiritual mood and thus these moods can be said to flow naturally from the subject matter… ."
Leigh contended that the statue represented the idea of the final judgment on the main character in the book. To this, the Court said:
"the idea of a forlorn cemetery statue representing final judgment cannot be protected by copyright. (Leigh’s) original expression of that idea, that being the elements of his photograph over which he exerted original creative control can be protected. It is these elements that that must be compared…and not the ideas that they convey."
The Court then looked at the copyrightable elements in Leigh's photograph (lighting, shading, timing, angle, background scenes, etc.) and noted that the Warner Bros. photograph was set farther back, and was slightly off-centre. More headstones, and different headstones, were visible, background trees were much larger, light streams were different and the Warner Bros. photograph had a different tint.
The Court concluded the case this way:
"(Leigh) may be correct in asserting that if it were not for his idea, the Bird Girl would not be associated with (the film). Nevertheless, copyright law does not protect his idea. Warner Bros.' expressions of that idea are original and different from (Leigh's). The only similarity between the images are of the sculpture in the cemetery. This aspect of the images, however, is not copyrightable."
Unauthorized use of Shania Twain’s bio
Industry "rules of thumb" and have no force in copyright law
In 1996, Barbara Hager wrote a book about Canadians of aboriginal heritage who have become well-known. She included a chapter on Shania Twain, titled "Shania Twain: Buckskin and Cowboy Boots." Hager interviewed Shania twice, once by phone and again in person, each time recording the interviews with Twain’s permission.
That same year, Michael Holmes also wrote a book on Twain. A promotional brochure described his book as "a detailed and revealing account of the life, passion and determination behind Twain’s Cinderella story." He incorporated aspects of Hager’s chapter into his book -- about one third of Hager’s chapter found its way into his book, some references were verbatim while others appeared by way of rearranged sentences or with additional material interspersed while following Hager’s same concepts, thought patterns and sentence structure.
Holmes sought no permission from Hager, who sued. For copyright infringement to occur, substantial similarity must exist between the original and the alleged copy. The test is not merely quantitative, but also qualitative since a small part of one work can form a larger part of another. The judge concluded that in relation to the hard back version of the Holmes book, "a substantial amount of (Hager’s) work was taken. In addition, the parts of (Hager’s) book that are most valuable to her were taken -- the direct quotes from Shania Twain. I conclude that qualitatively a very valuable and significant part of her book was taken."
Holmes defended himself by arguing that taking quotes is not an infringement of copyright, citing a number of legal precedents from the US that permitted this. The judge rejected them since the wording in Canada’s Copyright Act differed from the US Copyright Act to which those precedents related.
Holmes then suggested that industry practice permitted the taking of smaller quotes as he had done. The judge was unable to conclude from the evidence that such an industry practice existed, saying that in any event she doubted "that industry practice can sanction breaches of copyright." In this regard, the judge referred to a Canadian legal precedent where it was argued that academic treatises were meant to be used by others. The judge in that case said: "academic treatises, research papers and other written material enjoy as much copyright as any other work (and it) is not open to anyone to presume that because …academic treatises are meant to be used by others that they should be fully available to anyone (to copy)."
Perhaps the most interesting thing to come from this case is the comments of the courts relating to industry practices. "Rules-of-thumb" often develop within industries. It is important to appreciate that they are no more than "rules of thumb" and have no force in law. Copyright legislation supersedes them.
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