The humorous twitter experience WeScreenplay had recently dealing with giraffes and dinosaurs prompted WeScreenplay to ask me to do this blog. It boils down to the interesting question, “When is taking creative inspiration permissible borrowing’ and when is it ‘stealing?’” I thought that the complex answer was worth visiting.
Someone once said (and I can’t remember who), “All comedy is stealing.” Much comedy comes from a twisting or odd observation about common universalities we’re all familiar with. We are familiar with them because they already exist. Someone probably created them. The comedy depends on that familiarity and regurgitates it enough to go for the zinger.
Now the problems arise when the one who created the universally recognized referent isn’t the one who is cracking wise based on it. The aforementioned giraffes and dinosaurs issue is exactly that. This guy’s idea of replacing Jurassic Park dinosaurs with giraffes is funny. But is it legal? The answer depends on a lot of things and gets complicated. So let’s start with clarifying some terms and separating things properly.
Plagiarism and Copyright Infringement are Not the Same
First off, here’s a misunderstanding that even supposedly respectable journalists often get wrong let alone the average Joe. It’s a subtle distinction between two wrong things that aren’t the same wrong thing and are wrong for different reasons. It’s basically a difference between ethics and the law.
Everyone since grade school knows that plagiarism is bad. In short, plagiarism is passing off someone else’s work as your own. Copy someone else’s answer on a test = bad. Quote some authority figure in your paper without giving them credit making it look like you came up with it = bad. Do it in college and it might be enough to get you kicked out of school. Serious stuff with serious consequences.
But only on rare occasions is it actually also illegal copyright infringement. The reasons involve a whole lot of details outside the scope of this discussion. If interested you can search my regular columns at ScriptMag.com for more on that and other things. In short, copyright infringement is a legal protection for a specifically defined group of rights exclusively granted a work reserved to the author of that work with a few exceptions and caveats.
Plagiarism is ethically wrong. Copyright infringement is legally wrong. Sometimes the two cross over the same infraction, but, not always and not as often as people think. So they are definitely not synonyms of each other.
Parody and Satire are Not the Same
Getting more to the particular comic discussion that started this, what about parody? Isn’t that one of those protected exceptions in the copyright law? Proving that a little knowledge can be a dangerous thing sometimes, you can be right. But it’s complicated.
Parody has been found by common law courts in the U.S. and elsewhere, (but not everywhere) to be an excusable infringement of copyright law. Notice how I said that “excusable infringement” not an exception to it (even though exception and excuse are often confused in discourse as well.) Because it’s an excuse and not an exception the court case will take much longer and you won’t know whether you get away with it or not until the final verdict. It boils down to the judge determining, “You’re guilty, but, it’s okay this time.”
Parody falls into one of those special areas of speech that allow infringing the rights of others to make an important point, namely social commentary or criticism. It’s one of those “free speech” issues some people get all huffed about. (By the way, social commentary is where Social Media gets its “social” from.) But parody is a very narrow area, much thinner than most people think.
Parody is parroting the original just enough to be able to comment on the original. Take too much or use the material to make commentary on something else and you quickly lose the grounds for the legal defense. It’s a very thin and wobbly tightrope to walk. Even parody king songster Weird Al Yankovich still bothers to get permission from every rights holder for every parody song he does even though the law would probably be on his side.
And parody is often conflated with satire, a completely different animal and not nearly as protectable. Where parody is making comment on the thing itself, satire is making social commentary or making fun of much broader themes, usually in a social context far removed from the subject matter of the medium or message used to convey it. If you’d like you can imagine parody as a tiny slice of the much bigger satirical pie.
“Inspired By” and “Relies Upon” are Not the Same
So where is this very grey, hard to see line we’re not supposed to cross? One rule of thumb to tell whether you’ll start to get in trouble is considering the difference between “inspired by” and “relies upon”. If your creative idea spins off of another’s story or concepts but goes in a distinct direction, leaving behind even the slightest trace of what prompted the journey, then you’ll have a much easier going, at least legally. If you review the end result and can still see parts that might be litigious in someone’s eyes they can easily be excised and the new work can stand untethered and alone.
If, on the other hand, your new creation is deeply integrated into some other’s material and pulling them apart doesn’t even make sense let alone would be extremely difficult to do, then you’ll have to face the real chance of stepping on toes that might feel enough pain to seek vengeance. This has become painfully evident with the fan-films made (or attempted) within the Star Trek universe as the producers of Axanar have recently found out the hard way.
But there are alternatives. If someone considered writing a fan-fic, erotic novel about characters in the Twilight movie and book franchise it would be dangerously problematic legality-wise. But if the story ideas are strong, you can alter the characters enough to no longer rely on any familiarity with the inspirational source and find enough success that fan-fic is written about your own creation. (In case you didn’t get the reference, that’s exactly how Fifty Shades of Grey came about.)
How alike is too alike? Luckily there are legally established parameters that allow genres to use similar settings, character types and scenarios without infringing the rights of those stories that were told before them. This is the legal concept of scène à faire where it is acknowledged that certain types of things and places are common and necessary to tell a particular type of story. Scène à faire could be loosely translated into “scenario necessary for doing”. If you weren’t allowed to use those elements it would be difficult or impossible to tell the story properly.
I usually use a pirate or cowboy movie as an example, but, because I’ve been writing a science fiction pilot recently let’s use a space-themed example. Space is vast. It should be big enough for more than one space movie to be set in. And it is. So just because one science fiction tale is set in space doesn’t preclude all others from using the same, generic setting. Same goes for space suits, spaceships, planets, moons, technology and the like. Since all that paraphernalia is expected by the audience from films of this type, use of similar gear is outside the realm of copyright protection. (And this falls under the exception to, not excuse from distinction from earlier.)
In fact a good tell that you’re hitting scène à faire material is if the theme is part of the name, then likely it’s scène à faire – SPACEsuit, PIRATE hat, COWBOY boots, etc.
So there are ways of telling stories that are similar to something that came before without infringing on the rights of that original work. And there is lots of grey area where you can’t really tell without close examination and possible not until a judge has told you what’s what.
Examples, please.
Consider these scenarios: Sunday morning at the neighborhood coffeeshop you see your friend and ask if they saw that funny skit from last night’s Saturday Night Live broadcast. They missed it so you go about retelling the whole thing right there. You get the characters and dialogue spot on. You recite the whole thing and then the guy in line in front of you turns around and it’s Lorne Michaels. Can he sue? Technically, yes. Because you have just made a public performance of one of his works and public performance rights are one of the rights NBC holds as copyright owners of those skits.
Now say, instead of at the coffee shop, you do the same thing over the breakfast table to your significant other? No likely lawsuit, because not in public (but you may have to go to court for divorce proceedings if you do this too often). Details matter.
Now let us consider a few, key differences back at the coffee shop to show differences matter there too.
1) If the telling is done word for word, perfectly – definitely infringing.
2) If the telling is done poorly, making up wrong jokes to fill bad memory, not getting the voices right, etc. If done poor enough it may only be derivative not a direct copy (still a violation, just a different right).
3) If the telling is done so poorly that it becomes its own thing to the point where people want to hear you attempt to do “that voice” again that sounds nothing like the characters or skit from the show – you may have reached a transformative work, separate and above the original, so different and distinct that it doesn’t infringe the original anymore.
Back to the “Park” Question
So, giraffes and dinosaurs. Of course the final verdict (pun intended) will depend on all the specifics that would come up if a case goes to court about the script in question, but, for our purposes here we can tentatively guess at answers to a few questions. Is it comedy? Yes. Parody? Quite probably. Illegal? Most likely. Don’t forget, even if the judge determines it’s a parody of the script, there is the issue of the rights of the novel the original movie was based on. Since a new version of the script, parody or not, will need to have its own license for derivative rights (something the studio paid for before they made their movie) in order to not be infringing on that work. Would it survive a lawsuit? Who knows? I told you it was complicated.
Here’s a general question you can ask yourself if you ever wonder where you stand. It’s not perfect, but, it gets you thinking in the right directions.
How much truly creative effort did you put in? If not much, then that’s how much protection you can expect if an owner comes calling.
Hopefully this gets the right questions going in your own mind as you enjoy the comedic and familiar world around us.
Christopher Schiller is a NY transactional entertainment attorney who counts many independent filmmakers and writers among his diverse client base. He has an extensive personal history in production and screenwriting experience which benefits him in translating between “legalese” and the language of the creatives. The material he provides here is extremely general in application and therefore should never be taken as legal advice for a specific need. Always consult a knowledgeable attorney for your own legal issues. Because, legally speaking, it depends… always on the particular specifics in each case. Follow Chris on Twitter @chrisschiller, his website, and Google+.
If you want to see if Chris puts his money where his mouth is you can check out his latest short film on Amazon Video by following this link or searching for KEY TRANSITIONS.
