Last week the story du jour in the zany world of entertainment law blogging was actor Shia LaBeouf’s foray into film-making with his short film HowardCantour.com. It is now internet gospel that Mr. LaBeouf’s film blatantly plagiarized artist Daniel Clowes 2007 graphic novella Justin M. Damiano. Surprisingly, despite the pitch-fork-raised shouts of “plagiarism,” and Mr. Clowes’ recent news that he is considering his legal options, very few commentators have taken the time to analyze the situation from a legal perspective. What is even more surprising is that the first serious legal analysis I’ve seen was not the scathing take-down of Mr. LaBeouf that one would expect, but instead, a thoughtful defense of the actor written by Eriq Gardner at The Hollywood Reporter. But, given that it’s the holiday season, I thought I’d give the gift we all know the entertainment-law-blog community really wanted from Santa, and make the argument for why naughty Shia could and should be found liable for copyright infringement.
Now to the obligatory recap. On Monday, December 16, 2013, Mr. LaBeouf posted his 12-minute short film online to the website Vimeo.com (the film had originally premiered at Cannes back in 2012, but no one took much notice). Within hours of the posting, people began noticing, loudly, that his film bore a striking resemblance to Mr. Clowes’ novella. Although the film is no longer available online, those who saw the film noted that the opening narration is a verbatim recitation of the opening lines of Mr. Clowes’ comic, stating, “A critic is a warrior, and each of us on the battlefield have the means to glorify or demolish (whether a film, a career, or an entire philosophy) by influencing perception in ways that if heartfelt and truthful, can have far-reaching repercussions.” Both works are about the inner conflicts of a critic. The similarities go on. As Buzzfeed notes, the next scene in both works features a conversation between the lead character and a “young, blonde freelance critic” in which both blonde characters recite “nearly identical” dialogue. According to Buzzfeed, “[t]he parallels continue through the end of the film and the pieces share many more direct quotes.” (Note my use of accreditation and quotes, and for good measure – thank you for the info Buzzfeed! Your lists are quite amusing!)
Confronted with these glaring similarities and the growing roar of internet indignation, last Tuesday, Mr. Wanna-be-Indiana (no, I still haven’t forgiven Mr. LaBeouf for that monstrosity) took to Twitter to apologize. Unfortunately for Mr. LaBeouf, his apology revealed that he had failed to learn his lesson – neither the lesson to stop copying from others, nor to do a better job of hiding your tracks when you do so. Turns out the first line of his twitter apology, stating – “Copying isn’t particularly creative work. Being inspired by someone else’s idea to produce something new and different IS creative work” – was lifted from a four year old post on Yahoo Answers responding to the question, “Why did Picasso say ‘good artists copy but great artists steal’?” (this is too good, right?!). When the internet caught wind of this (beautifully ironic) second act of plagiarism, Mr. LaBeouf tried to turn the situation around by adopting the “I meant to do that” defense – releasing a string of Twitter apologies each taken from famous apologies of the past.
While I don’t think Mr. LaBeouf’s mea culpa tactics will get him very far in the court of public opinion, I’m certain they will get him precisely squat in a court of law. However, as Eriq Gardner noted, Mr. LaBeouf does have at least one potential legal defense in the event Mr. Clowes’ decides to sue for copyright infringement – our old friend the Fair Use Doctrine. As readers of this blog already know, the four factors courts look to in determining fair use are: (1) the purpose of the use; (2) the nature of the work used; (3) the amount and substantiality of the work used; and (4) the effect of the use upon the potential market for or value of the work used.
Now, Mr. Gardner suggests (admittedly in the role of devil’s advocate) that Mr. LaBeouf’s film may be found to be a fair use based on such facts as its transformation of Mr. Clowes’ comic from a novella to a film and the film’s incorporation of generic ideas and scènes à faire as opposed to Mr. Clowes’ expression. But, in balancing the fair use factors, courts also consider whether the use was for entertainment and commercial purposes as opposed to scholarship or criticism, whether the use gave credit to the original author or displayed bad-faith on the part of the alleged infringer, and whether the use was for small, personal consumption or wide-spread distribution. Each of these factors weighs against a finding of fair use in this case. Mr. LaBeouf’s liberal use of other people’s creative content in his apologies suggests he may argue his film was merely a comment on the art of copying. But the facts show that Mr. LaBeouf only adopted that approach once he was caught – twice. Surely, he didn’t think anyone would notice or appreciate his copying a random four-year-old Yahoo Answers post. Furthermore, Mr. LaBeouf certainly did not give credit to Mr. Clowes until after he was caught, and then only via Twitter. I think we can all agree his actions smack of bad faith. Moreover, it is obvious he meant for his film to be seen by as many people as possible. He released it at Cannes and on the frickin’ internet for crying out loud!
There is also the consideration courts give to the alleged infringing work’s ability to impair the potential market for derivatives of the original work. What if Mr. Clowes’ had planned to make his own film-version of Justin M. Damiano, or license those rights to someone else? Mr. Clowes would have a very strong argument that HowardCantour.com greatly impaired the market for him to do so.
Finally, although not a fair use factor, if Mr. LaBeouf is found liable for infringement, court’s also consider whether the infringement was willful. Even if Mr. LaBeouf’s actions in this case didn’t scream willfulness (THEY DO), the internet sleuthing prompted by this event has revealed that Mr. LaBeouf has a looooong history of taking credit for other people’s work. Assuming Clowes’ attorneys could get that evidence in under one of the exceptions to the character evidence bar in the Federal Rules of Evidence, let’s just say that if I were a betting woman, my money would be on Mr. Clowes.