Beyoncé is being sued for Copyright Infringement
Contributor: Lilian Guzman
A film-maker sued Beyoncé earlier this year
claiming the pop icon copied elements of his short film.
In the suit, Matthew Fulks also names Sony Music Entertainment LLC, Columbia Recording Corporation, and Park wood Entertainment LLC. Fulks alleges that the trailer for Beyoncé’s recent film, Lemonade, copied short film PALINOIA. Among the aspects copied from his film, Fulk points to the audio cues, timing and overall, “the total concept and feel.”
The allegations, if proven, would be particularly damaging
to Beyoncé, whose reputation is perhaps more reliant than most on the
appearance uniqueness of her style and the originality of her music and
videos.
So how could it even be possible that Beyoncé copied a
relatively obscure, blip-on-the-radar independent film? As it turns out, Fulk
was in direct contact with Bryan Younce, a high-level executive at Columbia
recognized for assisting Beyoncé in the creation of Lemonade. Younce is no
Beyoncé, sure, but that connection does make the possibility stronger than what
it seems at first glance.
Similar issues were recently part of a now-dismissed case
against Starbucks. As such, is this claim heading down the same path,or is
there some sustainability in Fulk’s claims?
Hayuk v. Starbucks
Last year, Maya Hayuk used Starbucks claiming that
the coffee giant’s “Frappuccino Campaign Artwork” was substantially similar to
several of herworks. As a result, Hayuk contended, the campaign artwork
infringed her multiple copyrights.” Hayuk is an internationally renowned visual
artist who previously licensed her work to companies such as Billabong,
Microsoft and General Motors. Hayuk’s artwork is extensively reported and
popular in print and online publications. So it was no surprise that
Hayuk was contacted by 72andSunny, an advertising agent representing Starbucks,
in the hopes that Starbucks could obtain permission to use Hayuk’s registered
art in a future campaign. When no agreement could be reached, 72andSunny
created a campaign for Starbucks using artwork Hayuk felt was similar to her
own.
The Ultimate Decision: Hayuk
Unfortunately for Hayuk, the U. S. District Court for the
Southern District of New York strongly disagreed. The court found that,
as a matter of law, Starbucks did not infringeHayuk’s copyrights, and so the
court dismissed the case.Hayuk could not “state a viable claim for infringement
of her copyrights,” the court said,“because the allegedly infringing
Frappuccino Works are not substantially similar to the Hayuk Works.”
To understand the opinion requires understanding of a few
key concepts of copyright law:
1. “Copyright does not protect ideas,
only their expression [yet], when ‘a given idea is inseparably tied to a
particular expression’ so that ‘there is a merger of idea and
expression,’ courts may deny protection to the expression ‘in order to avoid
conferring a monopoly on the idea to which it inseparably is
tied.’”
2. And even then, “raw materials such as
colors, letters, descriptive facts, and . . . geometric forms are part of
the public domain and not protectible.”
3. Lastly, when claiming that the total
concept and feel of infringing work is substantially similar to the registered
work, the court may find similarities “but nonetheless [hold] that substantial
similarity [does] not exist because of overwhelming dissimilarities in the
works.”
Basically, Hayuk’s registered artwork may be fine art, but
in court that does not mean automatic protection. Hayuk’s work creatively made
use of colors, textures and geometric forms. Do you see where I am going
here? Hayuk was creative with raw materials, and unfortunately, those
elements are not protectable. But could it be that the total concept and
feel of the two works were substantially similar?The court thought
otherwise. “Although the two sets of works can be said to share the use
of overlapping colored rays in a general sense, such elements fall into the
unprotectable category of raw materials . . . [and] [t]he far more dominant
dissimilarities in the specific aesthetic choices embodied in the particular
works distinguish them in total concept and feel and preclude a finding of
substantially similarity.” So Starbucks and 72andSunny made really good
use of the unprotectable concepts and ideas contained in Hayuk’s art, and even
then, the differences overwhelmed any similarities. So what does
this have to do with Beyoncé?
Fulk v. Beyoncé
Matthew Fulk is claiming “[the] LEMONADE Trailer is a
derivative work of the PALINOIA Work that misappropriates the visual content,
audio content (sound effects, dialogue, audio timing), mood, setting, theme, pace,
and total content and feel of the PALINOIA Work.” And, he contends, the
Lemonade Trailer is not only visually similar, but there are also similarities
as to audio, mood, pace, theme, setting, and total concept and feel. Focusing
on the total concept and feel, Hayuk provides a guideline on analyzing the
viability of Fulk’s claims.
Did Lemonade copy PALINOIA?
To begin, the question is whether Fulk’s given idea is
inseparably tied to his expression. “[C]opyright law defends only
expressions and not ideas, [therefore] the concepts underlying an expression,
however ingenious, remain free for anyone’s taking.” In fact, artistic
expression draws from the pool of creative ideas—the public domain—and as such,
raw materials are unprotectable. Basically, the name of the game is
“Finding Copyright Infringement.” In order to play, the court looks at
theTufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d
127, 132 n.4 (2d Cir. 2003). two works and creates a list of similarities
and dissimilarities. If the similarity is on the basis of a raw material,
then cross that out because it doesn't count. If there are more
similarities than dissimilarities, there is probably infringement.
Now looking at Fulk’s exact claims, Fulk complied
individual similarities when requesting protection of his ultimate
expression. To highlight some of Fulk’s claims:
1. Visual
Similarity One: Graffiti and Persons With Head Down
Both videos feature images of “the central character in a
state of distress” which are claimed to be strikingly similar because each
character is “leaning against a stable structure, with head down, face hidden
from the viewer.” And not only are the characters in similar moods and
positions, but also in a similar environment with “hand-painted graffiti words
in similar styles” displayed on the structure.
2 Visual
Similarity Six: Title Card Screens
Fulk’s film and Beyonce’s trailer both “feature title
screen using only white text on a solid dark color background, with the titles
of works centered in the middle of the frame printed in all capital letters and
strikingly similar fonts.”
3 Visual
Similarity Six: Title Card Screens Similarities in Mood, Setting, and
Pace
Fulk’s film and Beyonce’s trailer both “feature title
screen using only white text on a solid dark color background, with the titles
of works centered in the middle of the frame printed in all capital letters and
strikingly similar fonts.”
But Fulk made several claims in the hope of describing that
these similarities in conjunction prove that Beyoncé has copied the total
concept and overall feel of PALINOIA.One cannot forget “the
total-concept-and-feel [phrase] functions as a reminder that, while the
infringement analysis must begin by dissecting the copyrighted work into its
component parts in order to clarify precisely what is not original,
infringement analysis is not simply a matter of ascertaining similarity between
components viewed in isolation.” Ultimately, is Beyoncé taking
advantage of the unprotected elements in Fulk’s independent film like Starbucks
did in Hayuk or is there a viable claim?
Basic Copyright Law—Beyoncé Style
In Hayuk, the Southern District of New York felt as though
Hayuk was claiming protection for unprotected elements making her claim
unlivable, in some regard Fulk is doing the same. Particularly when
looking at Visual Similarity Six,where Fulk is claiming that the
black-and-white title screen is similar in both videos. Yet, the title screen
is an artistic expression derived from the public domain and as such,
anunprotectible raw material. In fact, the black-and-white title screen lacks
the originality synonymous with a copyright because such title screens have
been used in earlier films like Elephant (2003) or Dressed to Kill (1980):
Should those creators feel as though their copyrights have been infringed upon
by Beyoncé? The court may find that the black-and-white is rightfully a
material of the public domain, and for that reason, a black and white title
screen is crossed out on the list.
To contrast Fulk’s claims to Hayuk’s, the Southern
District of New York found that Hayuk did not claim infringement upon her works
as a whole but rather sub-portions of her artwork. In fact, in Hayuk’s
complaint, the visual artist provided side-by-side depictions of the campaign
artwork next to a cropped photo of her artwork. Fulk, however, did not
completely alter his film in a manner that makes the two works more
similar, yet the filmmaker does make claims to specific scenes in a sever able
fashion. There is a difference in length between the independent film and
trailer, and as such, the film in question has much more content than the
infringing trailer. Additionally, the specific scenes are not identically
placed in both Lemonade and PALINOIA. For
example, Visual Similarity One claims that the central character are in similar
moods, positions and environments; however, the scene in question is a short
segment of Fulk’s independent film, and in contrast, that same scene is a
recurring focus of Beyoncé’s trailer. The trailer depicts Beyoncé, with
her head down in a state of distress, and quickly cuts to several unrelated
scenes before cutting back to Beyoncé, with her head down in her state of
distress once again. The independent film does not follow that same
artistic method, but rather Fulk cuts to the central character in distress and
never returns to that same scene. So the scene itself is identical in
both videos, yet the importance of the scene varies. And ultimately, it
may be found that even though there are similarities in the scene, that that
same scene is overwhelmingly dissimilar.
The Total Concept and Feel
Overall, when listing each individual similarity in
his complaint, Fulk chose unoriginal and potentially unprotect able elements to
describe how his PALINOIA work was copied. Yet, the viability may lie in
the combination of all these similarities if the elements are considered
protectable. When evaluating literary work, an “examination would
encompass ‘the similarities in such aspects as the total concept and feel,
theme, characters, plot, sequence, pace and setting of the plaintiff’s books
and the defendant’s works.’” Similar to literary work, a video
should also be examined by analyzing similarities in the mood, pace and setting.
As such, both PALINOIA and the Lemonade trailer share the same mood, pace and
settings making Fulk’s claims of plagiarism more viable. Additionally,
the combination of these elements has great relevance, and in fact, “if the
selection and arrangement are original, these elements of the work are eligible
for copyright protection.” But PALINOIA is not creating the mold
for a new and different type of film. Previous films have combined a
heavy, dark and angst-laden mood with a pace featuring a rapid procession of
short scenes meaning there really isn’t a form of original expression in his
independent film. Lastly, the court will look at the dissimilarities, and much
like Hayuk, the court could find that the differences outweigh any
similarities. Yet when doing so, the court keeps in mind that “no
plagiarist can excuse the wrong by showing how much of his work he did not
pirate.” And the Lemonade Trailer and PALINOIA work, in the end, are
weirdly similar.
Is Fulk Making a Viable Claim?
The possibility that Beyonce copied Fulk’s independent film
is strong. In fact, a high-level executive at Columbia, who is in
constant contact with the pop icon, was also in contact with the PALINOIA
creator. And therefore, Beyonce could have easily accessed the film
through YouTube at the request of You once, this high-level executive. Fulk’s
Complaint also correctly pleads that PALINOIA and Lemonade do, in fact, share
similar scenes, audio cues, environments, mood, and theme which in conjunction
create a similar concept and feel, however, the ultimate question to be
answered is whether the dissimilarities overwhelm any of those similarities
that the film
1 Complaint,
Fulks v. Knowles-Carter, No. 16-CV-4278 (S.D.N.Y. filed June 8, 2016).
2 Complaint
at 10, Fulks, No. 16-CV-4278.
3 Complaint
at 20, Hayuk, No. 15-CV-04887.
4 Order
Granting Defendant’s Motion to Dismiss at 6, Hayuk, No.
15-CV-04887.
5. Id. at 7, 11.
6. Id. at 8, 11.
7. Tufenkian Import/Export Ventures, Inc. v.
Einstein Moomjy, Inc., 338 F.3d 127, 132 n.4 (2d Cir. 2003).
8. Id.
at 134.
9.
Boisson v. Am. Cty. Quilts & Linens, Inc., 273 F.3d 262, 273 (2d Cir.
2001).
10. Feist
Publications v. Rural Tel. Service, 499 U.S. 338, 349 (1991).