Sunday, December 5, 2010

Why Are There So Many Intellectual Property Lawsuits Involving Major Books, Movies and Plays: The “Fela” Lawsuit

As has been widely reported in the press, Carlos  Moore, the authorized biographer of Fela Anikulapo Kuti, the late Afrobeat star, has sued the producers and creators of the popular Broadway musical Fela for copyright infringement and other causes of action.  

By way of background, Kuti (the subject of the musical and the biography) was, in the words of this capsule description in The Guardian “an African revolutionary, musical visionary and polygamist who married 27 women on the same day in 1978.”  Surely a promising subject for a musical.

Moore contends that the producers offered him $4,000 for the rights to use his biography of Kuti, Fela: This Bitch of a Life, as source material for the musical.  Moore says that, after he turned down the offer, the defendants went on to use his biography to develop the musical without Moore's knowledge, authorization, or consent. “Entire portions were simply copied from Moore’s book and inserted into the script of the musical,” the lawsuit contends.  The New York Times has posted the complaint, which was filed on November 8, 2010, in federal court in New York. The defendants have denied any wrongdoing.

I'll leave it to others to offer their unsolicited views on the merits of this particular claim. What interests me here is why so many intellectual property claims are filed against popular novels, films, and theatrical works.

First, there is the difficulty in distinguishing non-copyrightable facts from the copyrightable expression of those facts.  It is axiomatic and true that you cannot copyright facts and ideas.  However, your own original expression of those ideas may be protectible by copyright.  In other words, as a matter of copyright law, anyone is free to use the facts in Kuti's life as the basis for a biography or a musical.  (We will leave aside the separate question of whether the "right of publicity" could sometimes prohibit the use of a living or deceased individual's life story in a theatrical work or film.)  However, one is not free to copy the original way that some prior writer phrased those facts and ideas or selected, coordinated, and arranged those facts and ideas in his or her account.  As one commentator has explained, trying to distinguish facts from the expression of those facts is like, in Yeats's phrase, trying "to tell the dancer from the dance."  Disagreements between plaintiffs and defendants over this fundamental issue in copyright law, known to lawyers as the "idea-expression dichotomy," form the basis of many, if not most lawsuits like those involving Fela or Dan Brown's DaVinci Code.

Second, there is the difficulty of determining when an oral contract has been formed.  In the Fela case, Moore contends that the production team consulted him in connection with the development of the show and that he had a reasonable understanding that, if his contributions were used, he would be compensated.  If the case goes forward, the defendants will presumably argue that no binding understanding was reached and/or that they did not use Moore's alleged contributions.  The many claims arising from alleged oral contracts illustrate the importance of getting good legal advice when negotiating licensing or consulting deals in order to protect the parties not only if the deal goes through, but also if the negotiations fall apart.  Of course, sometimes there will be lawsuits no matter how good the legal representation has been.

A third common problem, which does not appear to have been a factor in the Fela case, is (a) whether and how authors can protect their unsolicited concepts when they submit them for consideration by a production company, and, the flip side, (b) how a production company can protect itself against false claims that it copied and used (often very generic) concepts that it did not solicit (and, in many instances, even look at).

I will return to each of these problems in later posts.

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