Friday, April 20, 2007

Double-plus Un-infringe-ful

In your intrepid adventurer's last missive, I made the overproud claim that Bill Patry, in looking at the small controversy about the Apple-1984-Obama-Clinton ad "just plain misses the point." On reread of Professor Patry's post, I want to back off of that claim for a bit - he mentions what I think is the critical issue, but doesn't give it much emphasis.

(Note, the YouTube link above points to a copy of the mash-up ad; I couldn't find the original, apparently posted by Phil de Vellis, a/k/a ParkRidge47. YouTube also has the original Apple superbowl ad.)

Briefly, the owner of the rights in George Orwell's 1984 (Rosenblum Productions, Inc.) is "monitoring closely" what it claims is the infringement of its copyright by the ad linked above. Analysis on the web - including the weight of Professor Patry's post - tends to look at fair use and political speech questions.

But what's being missed is the more important question: WHAT INFRINGEMENT? Or more to the point, where is the substantial similarity to protected elements of the IP in question?

I was in high school in 1984, so you can imagine that it was a big deal to read the book and write all sorts of insipid essays. But I hadn't read the book since then so I hit the local public library and took it out and read it. Okay, skimmed it. But still.

There's nothing in the ad - either ad - that copies protectible elements from the book. There's no scene of trudging, bemasked drones, no ubiquitous gasmasks, no tube-sidewalks (which actually remind me more of Paris' Charles de Gaulle airport than anything. The book has the ubiquitous screens that the commercial(s) ha(s/ve), and the talking head, and you could make an argument for the whole unitard thing... but not really.

Clearly, whoever owns the rights in the original ad would have some sort of claim against the mash-up. And you could do a fair use analysis in that context.

(Frustrating side-note: there's already the annoying buzz of "Parody!" defense. If this ever comes to a head, I'm publicly begging the lawyers for Mr de Vellis to eschew that claim. It's not a parody. Remember, parody is where an author thinks, "hey, wouldn't it be a funny commentary on Barney if the apparently friendly giant purple dinosaur was actually - or also - a minion of Hell." Satire is if that author thinks, "hey, wouldn't it be a funny commentary on the state of the world if the selfsame dinosaur was being consulted by George W. Bush.")

In all fairness, Rosenblum apparently has rights in a Richard Burton film (warning: obnoxious rollover ad), which I haven't seen. And an opera, and videos, etc. (Per the press release.) I haven't seen those either. But assuming those materials hew sufficiently close to the line set by the book, the copying - or rather the lack thereof - will be the same.

This, folks, is a very good example of the idea-expression dichotomy at work. Orwell's book is a dystopian vision of the near future including an oppressive government, invasive surveillance, and ubiquitous propaganda. That's the idea.

There are a lot of elements within the book that are protected by copyright. Winston Smith, the image of and slogans of Big Brother, that amazing bit after Winston and Julia have made love for the first time, where the thrush sings. That's the expression.

The expression is protected by copyright. The idea is not.

Even though the ad does, at the end, explicitly point to the book to describe the atmosphere it's trying to evoke... there's still nothing in the ad that copies protectable elements of the book.

Which, I guess, is why Rosenblum is only "monitoring closely" and not "filing an action." Because some lawyer, somewhere, has probably done the analysis for them. The analysis that goes, "Sorry, guys. You got a pizza with nothin."

--Ben D. Manevitz

PS: Back in 1984 Rosenblum sent a C&D letter to Apple about the ad and "The commercial never aired on television again." (Per the Rosenblum press release.) Assuming the commercial really was pulled from broadcast, I deeply and sincerely hope that the C&D was not considered in that decision. I'm a little worried, this time, that Rosenblum might simply go with a DMCA take-down notice, a la the NFL.

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