Wednesday, September 21, 2016

How does race affect copyrightable expression?

Fulks v. Knowles-Carter, No. 16-Civ-4278 (S.D.N.Y. Sept. 12, 2016), contains an interesting bit about race and copyrightable expression:

[P]laintiff argues that the “race of the characters in the [Film] is irrelevant to the total concept and feel of a film about relationships.” Plaintiff would be correct if the Film were just about relationships. But it is not, and plaintiff’s say-so does not overwhelm the plain meaning of the work. The Film 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 Film from that in Palinoia.

In an opinion that goes from Voltaire to Taylor Swift to Oscar Wilde to Andy Warhol (that last one is just showing off), the court rejects the claim of substantial similarity between plaintiff’s 7-minute film about the aftermath of a relationship and Beyoncé’s Lemonade film and trailer.  Here, enjoy some more references from the opinion:

Plaintiff also argues that because the works all “portray a struggle of a relationship; the reasons for such struggle are unclear and irrelevant.” This 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). But “all fictional plots, when abstracted to a sufficient level of generalization, can be described as similar to other plots,” and that is why the differences do in fact matter. 

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