When Is Imitation Infringement? – Off the Mark

Whe​n Is Imitation Infringement?

Over the last few weeks, I was sent two different instances of mainstream, big dollar entities content that bared an eerie resemblance to work created by two different incredible brilliant creative artists. Happenstance?

While many people believe that imitation is the best form of flattery, many artists across the world adamantly disagree. Their livelihood is dependent on their ability to monetize create original work. Fortunately, Congress recognized centuries ago the necessity of creatives creating and enacted copyright laws to protect their interest. Copyright protects literary, dramatic, musical, and artistic works such as poetry, novels, movies, songs, computer software, and architecture. These laws give the copyright owner the exclusive right to:

  • Reproduce the work
  • prepare derivative works
  • perform the work
  • Display the work

Copyrights have three elements (requirements):

  1. The work must be original
  2. It must be in a fixed
  3. Tangible form

This means that ideas are excluded from protection. Sorry folks.

Imitation or Infringement?

I was sent an article inquiring whether CNN’s recently released documentary infringes on the work of the same title from independent artist, Sarah “Huny” Young. In the article, the author suggests that a single Google search on CNN’s part could have prevented the matter altogether. Here’s the thing, copyright laws require originality. The fact that something is similar does not mean that the work is not original. People are often influenced by life some share similar experiences which could manifest itself similar ways. My favorite example is to take two people locked in the basement. Let’s call them John and Michael. John and Michael are locked in the basement with only their respective girlfriends and have no access to one another. If they decided to write a song about their experience they could create something similar to this...

Each has no idea what the other is doing. The song is an original work for both. With no allegations of plagiarism, this is the case for Huny’s American Woman. It is very unfortunate that her brilliant depiction of black women in America and the “complex relationship with this country” is to be overshadowed by the work done by the news network giant.

Infringement or Imitation?

Cameron is a YouTube Partner known for creating song mashup videos with a quartet including Starrkeisha, Pastor James, Joe, and Cameron (all played by him). For the last two years, the quartet has created Christmas mashups. This year Old Navy Christmas commercial features a diverse group of people singing a mashup of Christmas songs. On an Instagram post, Cameron questioned whether Old Navy ripped his work.

Copyrights protect the execution of ideas, not the idea itself.Thus, it’s possible to have 100 hundred songs on the topic of love however the lyrics to the individual song are protected by copyright laws. While Huny’s situation was a matter of originality, Cameron’s is one regarding execution. Take a look at the videos.

Copyrights protect the execution of ideas, not the idea itself.

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While they have some similarities, specifically Christmas theme, mashup, carolling, the execution of the ideas are different. Despite the similarities, neither of the videos put me in mind of the other. The themes are common especially considering the holiday season.

Bottom Line:

  1. Copyrights protect original work that are in a fixed tangible form
  2. Originality is different from similar
  3. Ideas are not protected by copyrights but the execution of ideas are

Have copyright questions? Contact our office to schedule a consultation.

P.s... we discussed this live in our Facebook Group, Beyond the Launch.  Join future discussions by joining the group. Watch the video below.

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