How much can you copy? Filmmakers repeatedly ask this question when they are inspired by the plot, characterisation or other elements of a prior film. Being inspired is one thing, infringement is another.
The copyright law limits to copying involve many considerations. For example, the limits are narrower than the ethical concept of plagiarisation. They are also harder to apply even though the Australian Copyright Act lists them in sections on “fair dealing”. The US “fair use” concept is comparable, but wider than “fair dealing”.
This post discusses one approach to the question for film, television and online video program makers seeking to make legally-informed decisions and deals for their products. The approach simply involves considering product formats and genres. The aim is to make entertainment industry contracts and deals which maximise protection and minimise disputes.
The two leading cases in Australia on the limits of copying narratives and other elements in the film sector are about Jaws, the 1975 movie. While they are useful cases, it is difficult to draw from them easily actionable and practical methodologies or checklists to answer the question of how much can you copy.
This is apparent from re-reading the Australian Federal Court appeal decision in the Jaws case, Zeccola v Universal City Studios Inc (1982) 46 ALR 189, which followed the grant of an interlocutory injunction in the first instance by Justice Gray in the Supreme Court of Victoria.
The “how much can you copy” question resonates today given the complex developments taking place with transactions, dealings and trade involving combinations of traditional and new media.
There’s cases to provide some guidance for copying in film and television. This is not the case for the emerging technologies of Web TV, IPTV, and digital broadcasting products or services. Despite this, copyright law (especially when used in combination with contract law) works remarkably well to build certainty for deal makers when experienced legal counsel are used.
Whether you are focused on analogue old media or digital new media, or a combination of them, an approach which helps provide some guidance is to consider the format and genre of your product in the context of the relevant technology or entertainment industry market. (Since about 2000 the style has been to use the word “space” but I still always prefer the less amorphous term “market”.)
So you want to copy? Here’s some guidance on what to do next.
- Review your copyright property in its industry context. In so doing take a commercial or technical perspective involving marketplace product categorisation. In short categorise your product in terms of genre and format, if possible. (Note: Inexperienced lawyers tend to apply rote learning such as repeating the correct (but not always useful) copyright law mantra – infringement arises if you copy a “substantial part” of a copyright work without permission.)
- While “genre” and “format” have no technical definition in law, don’t let that shake your resolve. (Note: American entertainment and technology lawyers tend to work very comfortably with industry definitions, and they’ve created most of what we know as “entertainment law and practice”. The categorisation of works into genres and formats is not a natural approach for many legal academics, lawyers and courts, bound as they are by the terminology and ways of thinking mandated by copyright law. Bucking this tendency and applying copyright law to literary and dramatic plots and film narratives, in a Melbourne University Law Review journal article, Stephen Rebikoff interestingly applies a methodology derived from literary theory.)
- Once you’ve built useful definitions by first looking at marketplace and technological product categories only then consider approaches mandated by copyright law. (Note: Ultimately the law requires application of legal language and legal modes of thought; sometimes it does sound like useless jargon or mumbo jumbo but as noted already that’s not a fair criticism of copyright law.)
- If the definitional work is done well, the results will be worth it. You’ll be a deal maker with legal building blocks to make a non-infringing work for which you can prepare legally binding contracts and workable arrangements for specific film, television or rights deals.
Let’s test the concept in the suggested approach by briefly applying genre and format analysis to the famous Jaws case
There Zecolla and his collaborators lost the case run by Universal, the studio that made Jaws. Zecolla’s side claimed in their defence that their The Great White film of the early 1980s, was not an infringing copy of Jaws, the 1975 smash hit by Universal Studios.
Both films featured a killer shark terrorizing human beings in a local community. As Justice Gray clearly noted in finding the facts at first instance, the similarity between the films did not end there.
The key aspect of the Zecolla’s legal team’s argument on appeal was that Jaws was merely a genre film. They said it was based on the idea of a savage monster menacing a community, a killer shark terrorizing human beings, an idea, a general idea they said, that was not worthy of copyright protection. (Note: It is sometimes said that the first rule of copyright is that it protects the expression of ideas, not the ideas themselves.)
The appeal court agreed with the lower court, and found there was considerable copying of Jaws. It included copying of elements of characterisation, plot and events.
It is very clear from the two judgements that to make their Italian film, Zecolla’s side copied to such an extent that the trail of their copying followed many twists and turns of elements of characterisation, plot and events used in Jaws. After watching both films Justice Gray concluded that The Great White copied so much that it infringed copyright in Jaws. Zecolla’s legal team resoundingly lost the case and the appeal.
This result is very easy to understand, dare I say predict. It was a tale of two genre, drama, feature films, namely Jaws versus The Great White. These similarities of genre and format should have warned Zecolla’s legal team.
| Film format and genre categories | It would have been a much harder case for the courts to decide had the formats and/or genres been different. For example if you had to compare two films with:
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To avoid overstating the format and genre approach and to put it in perspective a final note is needed. It is that copyright law generally does a grand and far more useful job to help answer the question of how much you can copy. However, there are some other ways of looking at the question which can add to the primary sources, information available in the Copyright Act 1968 (Cth) and in court decisions.
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