Substantially Similar--A Blog on IP Issues, Writing and Film
Questions and Answers, #1: Recipes
by John Aquino on 04/11/12
Q: Can I copyright a recipe? I have found conflicting information.
A: Suppose you create a fantastic recipe for a chocolate cake. It took you years to develop it. You share it with a friend, who shares it with someone else, and the next thing you know it’s on the Internet, in a book, or someone else has won a contest with your recipe. Have they violated your copyright?
You should, of course, consult an attorney, giving him or her specific information on your particular situation for a definitive answer. But, in general, whether a court rules that something that is written down is copyrightable will depend on whether it is an original expression rather than a recitation of facts.
The
Supreme Court ruled, for example, that you cannot copyright the telephone book.
It is conceivable that a detailed, expressively conveyed recipe could qualify
as a "literary work" under the copyright law, while a short,
"three cups of flour, one cup of milk" would not. The latter is just
a recitation of facts—that is what you do to make this cake. Now, taking and
publishing without permission a collection--or substantial portions of a collection--of
recipes could conceivably result in copyright infringement of the collection.
But as for an individual recipe, this
statement from the Sixth Circuit decision in Lambing v. Godiva
Chocolatier (6th Cir., No. 97-5697, 1998) seems to reflect the current thinking: “Recipes, however, are not copyrightable, see Publications Int’l
Ltd. V. Meredith Corp., 88 F.3d 473,
480-81 (7th Cir. 1996).
The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection.”
There used to be a legal doctrine called “sweat of the brow” by which some form of copyright protection was offer to reflect the effort that went into compiling a phone book or creating a recipe. But the Supreme Court’s telephone book decision voided the “sweat of the brow doctrine.”
And so, copyright law would not appear to offer you protections for a single recipe. If someone took your recipe and claimed it was theirs to win a contest, they would conceivably have committed fraud against the contest. But that's the contest's legal action, not yours.This should suggest that you might just think about putting your recipe on the Internet or emailing it to a listserv.
You might find protection elsewhere in the law. You could, for example, sell the recipe to a cake mix manufacturer and then they could acquire protection for the recipe as a trade secret.
Or, you could revert to the idea of making the recipe a literary work of authorship by putting the recipe in verse:
To make this omelet, first you need
Three eggs, milk, salt, and a powdered cheese.
Break the eggs, drop yolks and whites into a cup,
Take a fork and mix them up.
And while you’re mixing, start to thinking
About humanity and why it is sinking.
Just an idea.
Copyright 2012 by John T. Aquino. This article does not represent a legal opinion. The opinions are those of the author and are presented for educational purposes.v
1950: A Bad Movie Year When Filmmaking Changed Forever
by John Aquino on 03/23/12
The film director and film journalist and author Peter Bogdanovich once wrote an article dubbing the 1939 as the greatest year for movies, and this has been taken up by others and is now common thinking.
I would like to propose that the year 1950 is the year that filmmaking reached a new low and changed forever.
It’s funny that I stumbled on someone else’s website that called 1950 the greatest year of moviemaking. The website’s point is that 1950 was the year of All About Eve, written and directed by Joseph Mankewicz, Sunset Boulevard, directed by Billy Wilder and written by Wilder and Charles Brackett, and The Asphalt Jungle, directed by John Huston and written by Houston and Ben Maddow. Great films all, to be sure. But All About Eve is surely the talkiest and most uncinematic Oscar winner for best picture, and the cinematic darkness and black mood of Sunset Boulevard, which was about a gigolo and an aging movie star, and Asphalt Jungle, which about a bank robbery gone wrong, illustrate the post-war despair of the filmic output. Either the films of 1950 were mostly listless affairs or in the case of these three films and some others deliberately moody, dark, and despairing.
There were a number of reasons why this was. One has to do with the aging of the big stars of the 1930s and 1940s as well as the studio and production heads and the failure to replace them adequately. A 1944 court ruling involving actors’ contracts hit the studios’ bottomlines and forced them to jettison many of their contract players. Aging actors and actresses, in turn, became freelancers and, starting in 1950, negotiated as part of their pay a percentage of the gross. Directors followed suit, and this ultimately meant that even the most successful films never made a profit.
Another court decision that affected moviemaking starting in 1950 was a 1948 Supreme Court ruling that Hollywood studios could not own theatres and therefore could not guarantee that a movie they made would be shown. This decreased output, which decreased creativity. The continued growth of television was also keeping people home for entertainment, which caused a drop in movie attendance and ticket sales. And some of those aging stars—Abbott and Costello, Ray Milland, Bob Cummings—found employment on television.
Finally, a film released in 1950 led to the beginning of the decline of Hollywood censorship, morals, and standards.
Aging Stars, Studios Heads, Lackluster Output
While it true that some fine films were made in 1950, mostly the output was run-of-the mill. For every Asphalt Jungle, M-G-M, the Cadillac of Hollywood studios, was churning out movies like A Skipper Surprised His Wife, Watch the Birdie, The Reformer and the redhead, The Yellow Cab Man, Lady Without Passport, and Right Cross. For musicals, M-G-M, which had been responsible for such greats as The Wizard of Oz and Meet me in St. Louis, was producing such gems as Nancy Goes to Rio, Two Weeks of Love, and the Duchess of Idaho.
Yes, M-G-M released Annie Get Your Gun in 1950, but its troubled production was illustrative of the breakdown in system and quality: Judy Garland, after years of drug and alcohol addiction that was supported by the studio in order to get her to sleep, get her up, and keep her calm, had a breakdown during Annie and was replaced by Betty Hutton from Paramount Studios; Frank Morgan, who had been with the studio since 1932 and had played the Wizard of Oz opposite Garland in 1939, died during production of Annie and was replaced; and Busby Berkeley, gifted but troublesome director of such musical landmarks as Forty-Second Street and Footlight Parade, was fired and replaced. The released film is big and noisy and gaudy but somehow unaffecting, almost as if the filmmakers just wanted to get it out.
Warner Bros., which had produced the great Berkeley musicals of the 1930s, was doing such derivative song-and-dance efforts was West Point Story, The Daughter of Rosie O’Grady, and Tea for Two, all evocative of other eras. Universal Studios was tied to its new or continuing series: Francis the Talking Mule, Ma and Pa Kettle Go to Town, and Abbott and Costello in the Foreign Legion.
The stars of the 1930s and 40s were aging, and it was showing. Errol Flynn, age 41 and looking 60, played in two 1950 routine westerns for Warners, Montana and Rocky Mountain, weak follow-ups to such Flynn westerns as Dodge City and They Died with their Boots On. Gary Cooper, the star of 1940’s The Westerner, 49 and looking 60, also starred in two forgettable westerns: Dallas and Bright Leaf. Clark Gable, Rhett Butler in 1939’s Gone with the Wind, 49 and looking heavy, played a race car driver crammed into his vehicle in To Please a Lady and was reunited with his co-star (former lover and mother of his daughter) of 1935’s Call of the Wild, Loretta Young, in Key to the City. At Warners, James Cagney rehashed the plots of Warners’ West Point musicals of the 1930s and his own Footlight Parade in the West Point Story, reportedly sliding his 51-year-old knees across the floor over and over until they bled.
Watching stars of the 1930s and 1940s playing the same old roles in 1950 films is often sad. They’re going through the motions, seemingly oblivious to the fact that they are older and the plots are tired.
Actresses were aging too and mostly doing what they had done before. Betty Grable, age 34, played a show business mother in My Blue Heaven and starred in Wabash Avenue, a remake of her 1943 film Coney Island. Joan Crawford starred in The Damned Don’t Cry, a retread of her 1945 Oscar-winning performance in Mildred Pierce. Greer Garson revived her Oscar-winning role of Mrs. Miniver from the 1943 film of the same name in The Miniver Story. Bettie Davis did star in All About Eve, which won the Oscar for best picture and for which she received the New York Film Critics’ Award as best actress. But she was 42, and her mannered performance as a mannered theatre star in Eve set the tone for subsequent performances, which dwindled in number after Eve.
Spencer Tracy showed his age to comic delight as the father in Father of the Bride at M-G-M but also ignored his age in Malaya, in which at 51 he listlessly played the type of adventurer and con man he had played in the 1930s starting with his first film, Up the River. Co-starring with him in Malaya was Jimmy Stewart, who, in a forgettable part for his old studio, M-G-M, was killed off half-way through the film. Stewart was by then freelancing for various studios, and it was he who signed to take a lower salary and a percentage of the gross for Winchester ’73.
Hollywood studios had already lost their special ability to keep actors under really long-term contracts, which sometimes stifled their careers but often, surprisingly, led them to do very good work. The law up into the 1940s allowed studios to suspend contract players for rejecting a role with the period of suspension to be added to the contract period. In theory, this allowed a studio to maintain indefinite control over an uncooperative contractee. Actress Olivia De Havilland had been under contract to Warners since 1935 and had appeared with Errol Flynn in such popular films as Captain Blood, the Adventures of Robin Hood, and Dodge City. She was also loaned out to play Melanie in Gone with the Wind. When Warners informed her that she was under suspension for having refused a role and that her contract was being extended yet again, De Haviland, whose father was a patent attorney, initiated a lawsuit that was supported by the Screen Actors Guild, in De Havilland v. Warner Bros. Pictures, 67 Cal. App. 2d 225 (1944).
De Haviland won the case in 1944, thereby reducing the power of the studios and extending greater creative freedom to the performers. The California Court of Appeal's ruling came to be informally known, and is still known to this day, as the De Haviland Law. The ruling interpreted the already existing California Labor Code Section 2855. That code section imposes a seven-year limit on contracts for service unless the employee agrees to an extension beyond that term. De Haviland ended her contract with Warners, which vowed never to hire her again, signed a three-film deal with Paramount, chose her roles carefully and won the Oscar for best actress in 1946 for To Each His Own and in 1949 for The Heiress.
David Niven and De Haviland’s estranged sister, actress Joan Fontaine, who had won an Oscar earlier than her sister, both acknowledged that De Haviland had done a great service to other actors. Actors took greater charge of their careers, the studios couldn’t force them into roles they didn’t want to take, with the result that some films were not made and some that were made were indifferently cast, affecting their quality.
The Black List, the De Haviland Law, and Film Noir
While so many of the films were retreads, what was new was dark.
In addition to causing his knees to bleed in West Point Story, Cagney had gone back to playing gangsters, beginning in 1949’s White Heat for Warners. But in contrast to his strutting, cocky, earnest if misguided Rocky in 1938’s Angels with Dirty Faces, the new Cagney gangster was sick and violent. His 1950 film Kiss Tomorrow Goodbye was banned in Ohio as “a sordid, sadistic presentation of brutality and an extreme presentation of crime with explicit steps in commission.”
Also in 1950 Cagney’s former gangster cohort at Warners Humphrey Bogart, age 51 and looking it, played an aging test pilot in Chain Lightning for Warners, and starred in In a Lonely Place for Columbia. This film noir was indicative of the mood change that had hit Hollywood, with Bogart, the romantic anti-hero Rick from 1942’s Casablanca, playing a screenwriter who may or may not be a killer of women and who takes delight in people’s suspicion that he might be.
Films had progressed from the great year of 1939 when the world appeared to be coming out of the Great Depression and was clearly headed into a second world war through the war years with their flag-waving and optimism and then to the late 1940s and into the 1950s when soldiers were coming home wounded (The Best Years of Their Lives, Till the End of Time, The Blue Daliah, all 1946) or violent and twisted (Crossfire, 1947), war widows struggled (Holiday Affair, 1949), and people were dealing with their guilt or secrets (All My Sons, 1948).
And many in Hollywood had secrets and reason to worry that people were after them. The “Hollywood Ten,” screenwriters and directors who refused to testify before the House Committee on Un-American Activities, which was investigating whether or not Hollywood was disseminating communist propaganda, started serving their prison sentences in 1950, and that same year a pamphlet titled Red Channels named 151 entertainment industry professionals in the context of “Red Fascists and their sympathizers.” Soon most of those named, along with a host of other artists, were barred from employment in much of the entertainment field. Having no other way to make a living, blacklisted screenwriters began using “fronts” who took credit for the work of the blacklisted writer and shared the money. In 1950, one of the Hollywood Ten, Dalton Trumbo, used Millard Kaufman as his first front for the film Gun Crazy.
Not only were people taking credit for work that they did not write, some informed on others to Red Channels and the HUAC to advance their own careers.
Creativity fares badly in such an atmosphere.
It wasn’t only actors and actresses who were aging and struggling. Louis B. Mayer had been head of M-G-M studio operations since 1924 and had seen the studio through its glory days. By 1948, due to the growth of television and changing public tastes, the studio had suffered a considerable drop-off in its success. Mayer was ordered by his New York boss to hire writer and producer Dore Schary as production chief with instructions that Schary control cost. While Mayer preferred wholesome family films like Meet Me in St. Louis, Schary wanted to make message films such as 1950’s The Next Voice You Hear, in which a voice claiming to be that of God preempts all radio programs for days all over the world. It starred James Whitmore and Nancy Davis, the future Mrs. Ronald Reagan, first lady of the United States.
By 1950, Mayer and Schary were in a battle for control of the studio. It affected the output. Within 18 months, Mayer was gone.
Schary began the process of not renewing the contracts of and even firing M-G-M stars. Clark Gable lasted until 1954, but a story David Niven told in his memoir Bring on the Empty Horses typifies the mood. Gable’s agent called him to say that M-G-M would not be renewing his contract. A week later, the agent called to say that Gable’s 1953 film Mogambo was a monster hit, that M-G-M wanted to renew his contract after all, and would pay him the $200,000 a film he had been making. Gable said, “Ya know, I think after all this time, I should be making more. See if you get me $300,000 a picture.” The agent called back a week later and said, “You know, they agreed. They’ll give you the $300,000 a picture.” Gable said, “I’ve been thinking, they kinda hurt my feelings by not renewing me after 23 years at M-G-M. Tell you what, see if you can get me $400,000 a picture.” The agent called back a month later and said, “Hey, I did it! I really did it! And it was hard, it was really hard. But they finally agreed to give you $400,000 a picture.” Gable said, “Fine. Now get them up to $500,000 a picture, and then tell them to go F*** themselves.”
Gable started freelancing like Stewart and getting a percentage and was happily employed until his death in 1960. For what it was worth, none of the films Gable made away from M-G-M, with the possible exception of his last, The Misfits, were any better than To Please a Lady.
Back in 1950, Mayer and then Schary, who replaced him a year later, had done nothing to control or combat the blacklist and had even been co-conspirators. The year 1950 was a venomous year. Ingrid Bergman, Bogart’s co-star in Casablanca and one of the most famous and successful stars in Hollywood in the 1940s, was blacklisted in 1950 not for her politics but because she had had an adulterous affair with the Italian director Roberto Rossellini and married him that year.
At M-G-M, Schary had been letting actors go in order to control costs. Even though De Haviland won the Oscar for Best Actress in 1949 by 1950 she was virtually unemployable. She did not make another movie until 1952’s My Cousin Rachel and made only six movies in the entire decade of the 1950s. If studios were letting their contract players go, it goes to reason that they would not want to employ the actress who had virtually destroyed the Hollywood actor contract system. Besides, De Haviland had been accused of having communist sympathies and was later called before the HUAC.
The Paramount Ruling and Il Miracolo Case
The reason Schary and other studio heads had to control costs because of declining ticket sales. The decline was affected by the growth of television but was accelerated by the U.S. Supreme Court’s decision in United States v. Paramount Pictures, Inc. 334 U.S. 131, (1948). The verdict went against the movie studios, forcing all of them to divest themselves of their movie theater chains on anti-trust grounds. In addition to Paramount, RKO Radio Pictures, 20th Century Fox, Columbia Pictures, and Universal International were named as defendants.
The inability to block-book an entire year's worth of movies caused studios to be more selective in the movies they made, resulting in higher production costs and dramatically fewer movies made. This also caused studios to raise the rates they charged theaters, since the volume of movies fell.
The effects of the Paramount ruling began to be felt in full in 1950.
At the end of 1950 there was another court ruling that forever changed filmmaking on both sides of the ocean.
Il Miracolo was an Italian film directed by Rossellini, whose affair with Ingrid Bergman and subsequent marriage created a scandal in 1950. Its plot centered around a man who calls himself “Saint Joseph,” who was played by director Federico Fellini, co-writer of the script with Fellini. The man impregnantes a disturbed peasant girl named Nanni, who was played by Anna Magnani. The pregnant Nanni comes to believe that she is the Virgin Mary carrying the baby Jesus. The film was obviously intended to be satiric.
It premiered in Europe in 1948 as one of three parts in and the anthology film titled L’Amore. Il Miracolo sparked widespread moral outrage, and was criticized as harmful and blasphemous. Protesters in Paris picketed the film with signs saying “This Picture Is an Insult to Every Decent Woman and Her Mother” and "Don't Enter the Cesspool."
The anthology film was first shown in New York in November 1950, presented under the title Ways of Love, with English subtitles. In December, Ways of Love was voted the best foreign language film of 1950 by the New York Film Critics Circle.
After its American release, the New York State Board of Review concluded that Il Miracolo or The Miracle was "sacrilegious." After a hearing, on Feb. 16, 1951, the Commissioner of Education was ordered to rescind film’s license. The board's decision was upheld by the New York court, as well as the Court of Appeal.
In Joseph Burstyn, Inc. v. Wilson, 434 U.S. 495 (1952), the Supreme Court determined that provisions of the New York Education Law that allowed a censor to forbid the commercial showing of a motion picture film it deemed to be “sacrilegious” was a "restraint on freedom of speech and thereby a violation of the First Amendment.
The court stated that “It is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine, whether they appear in publications, speeches or motion pictures.”
The Burstyn decision weakened the ability of state censorship boards and the Catholic Church to influence the types of films Americans were allowed to see. Consequently, the case signaled the rise of a new era in which films would be more mature and more controversial than ever before. In 1953, Otto Preminger and United Artists decided to release a movie version of the sex comedy The Moon is Blue, even though had been denied a Motion Picture Production Code seal of approval because it used the words “pregnant” and “virgin.” The film was later condemned by the Catholic Legion of Decency. But it was still widely distributed and became a hit.
FIlms started being targeted to a narrower audience than in the 1930s and 1940s, and not the wide demographic, family audiences the studios had targeted in the 1930s and 1940s. Foreign films were more widely available, and seeing them indicated that you were sophisticated and not one of the crowd. Even U.S. films, the restraints of censorship relaxed, risked losing some in favor of the fewer.
And so films in 1950 were either routine or dark, guided by struggling studios with aging stars anxious to break out on their own, which was leading to a star-oriented, narrower audience mode of entertainment.
Aftermath
After such a bleak—in so many meanings of the word--year as 1950, Hollywood reacted. Attempting to give audiences something they could not get from television, M-G-M in 1951 shot one of the most opulent movies ever made, the Roman spectacle Quo Vadis starring Robert Taylor. M-G-M went on to make a series of splashy spectacles—Scaramouche, Beau Brummell, The Adventures of Quentin Durward, and the Knights of the Round Table—and went on to make four of the greatest screen musicals ever made: Singing in the Rain (1952), The Bandwagon (1953), Seven Brides for Seven Brothers (1954) and Gigi (1958). Other studios followed the spectacle route, and widescreen movies became the norm.
But the films were often empty, the stars were still aging, the studios were in turmoil, films were often written by blacklisted writers using “fronts,” and the ticket sales continued to decline. In 1953, 1956, 1957, and 1958, the Academy Award for screenwriting was won by a blacklisted writer who either used a front or a pseudonym.
Schary was forced out of his position in 1957, and the studio was taken over by “suits.” By 1960, all of M-G-M contract stars had been released, the last being Robert Taylor, who had lasted so long because he was able to fit into films of different genres, including spectacles, and was generally likeable and not troublesome.
RKO Studios was sold to General Tire, which shut it down in 1957 and sold the facilities to Desilu Studios, owned by Desi Arnaz and Lucille Ball, two former film stars who had found success in television with the show I Love Lucy.
In 1950, the films produced were generally unremarkable, and the seeds of decline had been planted.
Copyright 2012 by John T. Aquino
Legal Problem Solving: It's a Wonderful Life
by John Aquino on 03/20/12
One of the things I especially like about being an attorney is the problem solving aspect. In law school, you study case law, precedent. But very seldom does someone come into your office and you can say, "Open and shut. Goldenberry v. Madison makes it a slam dunk." The facts of that case will be different from your case. The precedent may be strong, but is it strong enough? And what if the precedent appears to go strongly against your case, That's when you take your case apart piece by piece and see what you've got.
As an illustration of legal problem solving, especially as it relates to intellectual property, I like the story about the rebirth of It's a Wonderful Life.
It’s a Wonderful Life was a Christmas movie released the year after World War II ended. It was both wondrous and dark—telling the story of a man who contemplates killing himself on Christmas Eve so that his family will get the insurance money and is shown by an angel what the world would have been like had he not existed. It was also James Stewart’s first movie after four years of military service.
Frank Capra directed it, and Liberty Pictures, an independent production company he co-founded, produced it. When it was released in 1946, while it won Academy Award nominations for best picture, best screenplay, and best actor, It’s a Wonderful Life was not a major hit.
Although the star and director evidently were, audiences were not ready to explore a dark but ultimately redeeming Christmas-time movie. It was, as is said about a number of classics such as Citizen Kane that did poorly at the box office, ahead of its time. Liberty Pictures ultimately disbanded, and Capra spent most of the 1950s retired. He returned to make A Hole in the Head in 1959 and Pocketful of Miracles in 1961 and then retired again for good. He died in 1991.
A company called NTA acquired the rights to It’s a Wonderful Life and other independently-made movies—movies not made by major studios who had their own legal departments and routines.
Under the Copyright Law that was in effect at the time, published works—which included films—could be registered for copyright protection for 28 years and renewed for another 28 years. If the copyright was not renewed, then the work fell into the public domain, which meant that anyone could use it without permission of the former copyright owners.
NTA became Republic Pictures. For whatever reason, Republic did not renew the copyright for It’s a Wonderful Life, and the movie fell into the public domain in 1974. Public television stations especially suddenly found that there was a Class A Christmas movie that they could show for free. It’s a Wonderful Life was rediscovered and embraced.
Soon, the film was being broadcast throughout the country. In 1989, in New York City alone, it was shown 29 times during the Christmas season. But, because the film was in the public domain, Republic Pictures did not make a dime on the film’s revived popularity, all because they had not renewed the copyright.
And so, in the early 1990s, coincidentally, after Capra died, Republic Pictures set itself a task--to see if the copyright could somehow be reclaimed. There were strategy meetings and discussions. They went through every aspect of moviemaking--cinematography, costumes, the music soundtrack, the script. One thing that people need to know about movies is that they are the sum of their parts. A movie is copyrighted as a whole new work. But there are independently-created elements to every film. The creators of those pieces can be employees of a studio, in which case the studio owns the copyright of their work, or the creator can contractually assign the copyright to the studio, or the creator can claim copyright in the work and license it to the studio. In addition, a script can be based on a short story or novel or even another film and be considered a “derivative work” from a copyrighted work. The U.S. Supreme Court had held in 1990 concerning another James Stewart film—Alfred Hitchcock’s Rear Window--that the rights of the underlying work on which a derivative work was based did not themselves expire just because the rights in the derivative work expired—Stewart v. Abend, 495 U.S. 207 (1990).
Republic checked and found it still owned the rights to the story on which the screenplay for It’s a Wonderful Life was based—“The Greatest Gift” by Philip Van Doren Stern. As a backup, in 1993, it purchased the rights to the film’s musical score by Dimitri Timokin from his family, which had been copyrighted separately. Armed with the Supreme Court decision concerning the underlying story and with the copyright in the music that permeated the film’s soundtrack, Republic issued a notification to all concerned and perhaps especially to television stations that broadcast of the film without its permission would violate its copyrights. It then sold exclusive broadcast rights to NBC Television. As of this writing, its claim has not been seriously challenged, and the film has only been shown under Republic’s license.
The story of It’s a Wonderful Life is a lesson in problem-solving. The problem seemed impossible to solve. Republic had let the copyright in the movie expire! The movie was commonly thought to be in the public domain. But the attorneys and executives at Republic sat down and thought it out. They broke the problem into components and realized that the movie itself was broken into components. The idea of buying the copyright for the music and telling public television stations, “Go ahead, show the movie, but you can’t play the music,” is intriguing. But that was only their backup. What they understood was that the movie was a “derivative work” under copyright law. The Supreme Court decision in Stewart confirmed that the rights of the original story—including the right to make, show, and distribute a derivative work—were still protected by the copyright law. Republic owned them and so could claim copyright in the film.
Problem solving, taking the problem apart and laying its parts out, is one of the most fascinating aspects of the practice of law.
Note: This is a response to comment no. 3 below. It took up more space that the comment area allowed: By buying the copyright for the music, Republic was able to say to anyone, like a public television station, by showing the film (which includes the music) you will be violating our copyright. But, that was just to start. Republic then found that the rights to the original story had been purchased when the film was being made and that that copyright had been renewed. And, under a court decision concerning the Hitchcock movie Rear Window, the court ruled that when a movie is adapted from a work that is protected by copyright, even if the movie falls out of copyright protection (in this case through nonrenewal), the copyright for the original work extends to the movie. In other words, Republic determined that It's a Wonderful Life had not really fallen into the public domain after all--they didn't find out for 20 years and so public television stations and others had been allowed to broadcast the film without permission. Republic reasserted their rights, Paramount took over that assertion, and so far no one has successfully contested Paramount's copyright claim. This is why the movie has been broadcast exclusively on NBC, which obtained the rights from Republic/Paramount.
Copyright 2012 by John T. Aquino. This article does not represent a legal opinion. The opinions are those of the author and are presented for educational purposes.
Still More on Creativity and the Open Faucet
by John Aquino on 03/16/12
One interesting sidelight of the discussion about creativity is "the open faucet" concept.
I remember reading about this in Jean Anouilh's introduction to his play Becket, which dramatized the events leading to the assassination of Thomas Becket. It's funny that 30 or so years ago the names Jean Anouilh, Christopher Fry, and Terrence Rattigan were well known. They were leading playwrights. Anouilh had sort of an existential cast. When Noel Coward went to Vegas and performed in a one-person show, he received Cole Porter's permission to add versions to "Let's Fall in Love" and wrote,
Anouilh and Sarte, God knows why, do it,
As a sort of a curse,
Eliot and Fry do it,
But they do it in verse.
Anyway, Anouilh wrote in his introduction that Becket came about after he had finished a major play. Rather than being exhausted and deciding to go to Riveria, he found that he wanted to continue writing. "Talent," he said, "is like a faucet. Once it is open, one must write."
He went onto to describe how he actually looked around in his library for a book to adapt into a play, the talent faucet being open. He found an old book he had bought because its color fit in well on his bookshelf and opened it to read the story of Thomas Becket. He reportedly wrote the first half of the play in 15 days. Becket is probably Anouilh's most remembered play, if only because of the 1964 film version starring Richard Burton and Peter O'Toole.
And, although I have not and probably ever will write anything as lasting as Becket, I have found the same thing happening to me. Just yesterday, I finished a long article and should have been exhausted. I was then asked to write something else and told I could wait until after the weekend, and I discovered I was able and anxious to just finish it.
I'm sure there's a neurological explanation for this, I just don't know it. I see Jonah Lehrer has written a book titled Imagine: How Creativity Works that is due out March 9, 2012, perhaps he addresses it.
Looking from the outside in, I think we can see examples of this "open faucet" phenomenon. Steig Larsson completed three novels, The Girl with the Dragon Tattoo, The Girl Who Played with Fire, and The Girl who Kicked the Hornets Nest, and reportedly portions of additional novels in the series in a burst of creativity before his death in 2004. They were unpublished before his death, and the three completed novels all became international best sellers and were made into movies.
George Bernard Shaw, about whose work I wrote my master's thesis, spent World War I writing very little. At war's end, he produced Heartbreak House, a moody, lyrical, metaphorical play about a world drifting toward destruction. He then wrote Back to Methusaleh, a five-play cycle about creative evolution that spans from the Garden of Eden to the distant, distant future. Still looking for things to write, Shaw translated a play by his German translator, Jitta's Atonement. Seeing her husband at loose ends, Shaw's wife began leaving books about St. Joan around the house and, although it was an atypical subject for him in many ways, took it up and wrote his most famous play, which led to his winning the Noble Prize for literature in 1924. And he was in his 60s during this time.
You can see it in Alfred Hitchcock's work in the 1950s. After a difficult period in Hollywood in the late 1940s, he directed, one after another, Strangers on a Train, I Confess, Dial M for Murder, Rear Window, To Catch a Thief, The Trouble with Harry, The Man Who Knew Too Much, The Wrong Man, Vertigo, North by Northwest, and Psycho. Although some can debate the quality of some, there's not a clinker in the bunch and a few--Strangers on a Train, Rear Window, Vertigo, North by Northwest, and Psycho--are masterpieces. Also during this period, he produced and hosted a television program than ran for 10 years and directed a handful of episodes. The ideas kept coming, moving from style to style, never repeating.
After these "open faucet" periods, Shaw, in was in his 70s and Hitchcock, who was in his 60s, saw a falling off in their work.
For some writing or directing or whatever the creative outlet is easy, for others it is hard, but when the faucet is open we should work because you never know when it will close.
Thoughts on the HBO Film "Game Change"
by John Aquino on 03/11/12
I saw the HBO film "Game Change." In a Washington Post article, the authors of the book and the filmmakers insist the story presented in the film is true,
I have written books and articles on fictionalization in fact-based films. "Game
Change" depicts 2008 Vice Presidential Nominee Sarah Palin as not knowing that the Queen of England is not the head of state or why there is a North Korea anf a South Korea. The movie does not emphasize the effect of the economic crisis on the 2008 presidential election.
"Game Change" does not end with a typical disclaimer that states, "While based on a true story, certain characters and events have been fictionalized..." but instead with "This film is a dramatization based on certain facts. Some of the names have been changed and some of the events and characters have beenfictionalized." The film's disclaimer does not mention "truth" or "true story" but instead emphasizes "dramatization" and limits itself to "certain facts."
The film has as its protagonist Steve Schmidt, who advised Republican nominee Sen. John McCain and later regretted making that recommendation. Schmidt was a source for the book, a technical advisor on the film, nnd is one of those in the Post story insisting the film's story is the truth.
Schmidt's invovement reminds me of a number of other moves,
In the 2001 movie Thirteen Days, the story of the 1962 Cuban Missile Crisis is shown through the eyes of presidential aide Kenneth O’Donnell, played by Kevin Costner. President John F. Kennedy asks his advice constantly. O’Donnell sits in on cabinet meetings, he drives attorney general Robert F. Kennedy to a meeting with a Russian diplomat, and later briefs the president. While O’Donnell was indeed an aide to President Kennedy, he was his appointment secretary and had no involvement in the Cuban Missile Crisis. He did, however, have one thing going for him that Secretary of Defense McNamara, Secretary of State Rusk, and other Kennedy cabinet members and aides did not—O’Donnell’s son co-produced the movie, and so his father became the movie’s focus.
Similarly, the screenplay of the 2007 film Talk to Me about Washington, D.C.-radio talk show host Petey Greene was co-written by Michael Genet, the son of Dewey Hughes, who had worked with Greene in the 1960s. The movie has been characterized as a “buddy movie” about Greene and Hughes, even though, according to Greene’s family, Hughes and Greene were not that close, Hughes fired Greene, the two didn’t talk for years before Greene’s death in 1984, and Hughes did not deliver the eulogy at Greene’s funeral as he does in the movie because he did not attend it
Marianne Pearl wrote the book on which the 2007 film A Mighty Heart, about the kidnapping and murder of her husband Daniel Pearl in Iraq. Asra Q. Nomani, Daniel Pearl’s colleague, complained that the Daniel Pearl she knew was nowhere to be found in the movie. The problem with Daniel Pearl and the movie is that Daniel Pearl’s only purpose in it is to disappear. As a result, his character became a stereotype of a well-intentioned smuck who ignores repeated warnings not to go to the meeting alone. Marianne Pearl is portrayed by the film's major star—Angelina Jolie, and the story focused on her search for him.
