Copyright infringement or not?
An alleged resemblance between two works is always quite fun to analyze: would that constitute a copyright infringement? What if is the previous work itself is not protected by any intellectual property right? Here are two recent French examples. – A guest post from Dóra Hajdú.
An alleged resemblance between two works is always quite fun to analyse: would that constitute a copyright infringement? What if is the previous work itself is not protected by any intellectual property right? Here are two recent French examples.
“The Young Pope”
The Young Pope (2016) is a miniseries created and directed by Paolo Sorrentino starring Jude Law. It has opening credits that depicts the main character, the pope Lenny Belardo, walking along a gallery of pictures and following a bright star (or comet). At the second part of the video (from around 1:06) the gallery is replaced by a black background from where an image of another pope emerges and the spectator can see him hit by a star (and that’s when we can see the title of the miniseries with the name of the director).
Let’s concentrate only on the first part of the opening credits since it’s alleged infringing a previous video entitled Louvres Airlines realized by a young French director, Alexis Z. This video shows some of the most famous paintings of the Louvre museum that are depicted in moving sequences as the spectator follows an airplane.
Since in French law, copyright infringement is assessed on the basis of similarities and not on the basis of differences, did the opening credits of The Young Pope infringe copyright rights of Alexis Z. on the video of Louvres Airlines?
According to the Paris Court of Appeal, yes! In its decision, it states that the video of Louvres Airlines is protected by copyright. The court further argues that the fact that the two videos are equally constructed from a long take of a lateral tracking of classical paintings moving from right to left at a constant speed that gives the overall impression of slowly walking along the walls of a hall is enough to prove the copyright infringement. It is indifferent if the spectator follows a bright star or an airplane since both are passing through the upper parts of the paintings, the speed of the movement is strictly identical and one can read names below the paintings as moving along. The differences like the character of the pope in the opening credits, the replacement of the airplane by a bright star or the lack of white trail left by the airplane are not enough to change the impression of overall resemblance of the two videos.
Cour d’appel, Paris, Pôle 5, chambre 2, 19 Juin 2020 – n° 19/04123
For further reading visit this site.
This second case is about using a moodboard created by someone else as a source of inspiration. A moodboard is a visual presentation tool to convey a feeling or idea of a particular topic and it can be composed of texts, images or samples of objects.
Kyo Jino is a stylist who sent a moodboard to the French pop singer Aya Nakamura with some outfits followed by a photoshoot back in 2018. The video clip of the singer’s single “Pookie” came out a few month later and Kyo Jino believed the outfits in the video were directly inspired by his moodboard. A dispute on social media started ended by the quote “sue me and we’ll see” from the singer… and the stylist sued Aya Nakamura. So now we know the position of the French courts on the case.
We have to admit that this is not a copyright infringement case since the moodboard itself doesn’t reach the threshold of copyright protection. But French law allows a protection against the re-appropriation of the economic value of someone else’s work based on the general non-contractual liability section of the Civil Code (art. 1240). For that, it is needed that the copying constitutes a wrongful act – and according to the French court of first instance, this was not the case since material differences may be observed between the outfits showed in the clip and presented on the moodboard, even though the style of them are quite similar.
Kyo Jino may consider an appeal (especially because he has to pay mora compensation to Aya Nakamura because of the damages made to her reputation based on the media coverage of the case). One final thing to be noticed is the lack of agreement between the singer and the stylist: the outcome could have been different if the legal basis were contractual liability.
Tribunal judiciaire de Paris, 15 janvier 2021, n° 19/07796
For further reading see the Huffington Post’s article.