Commercial t-shirt designs based on famous movie scenes?

[davej]

If I were to base a t-shirt design on a famous movie scene, would I be infringing copyright?

My example is the scene from Planet of the Apes depicting the Statue of Liberty partially buried in sand on the shore.

The artwork would be created entirely from scratch with no tracing or physical/digital use of the original image at all.

The t-shirt artwork would be a more abstract graphic design than the original photographic still from the movie; using a limited selection of colours and slight changes to the overall composition of the image to make it more suitable as a t-shirt design. The image would include the statue and a graphical depiction of the sand, shoreline, and rocks.

The t-shirts would be sold commercially online (potentially internationally.) I would not mention the name of the movie along with with sale of the t-shirts as I assume this would infringe its trademark.

Thank you for taking the time to read my post.

[AndyJ]

Hi Dave,
Given the fact you want to create this image entirely from scratch, I think you should be OK. One of the basic principles of copyright law is that it only protects the expression of the idea rather than the idea itself, so on that basis, your new rendition of the idea of a post-apocalyptic Statue of Liberty should meet the criteria. I suggest that since you are no doubt familiar with the scene in the film, you actually re-draw the scene from memory as this will reduce the chances of you inadvertently copying the original too closely.
As you have said, stay away from any mention of the film title and you will avoid any trade mark infringement.

[davej]

Thanks for your quick reply Andy! Drawing from memory to avoid copying seems like a good way to go, just to be on the safe side.

[typonaut]

Thanks for your quick reply Andy! Drawing from memory to avoid copying seems like a good way to go, just to be on the safe side.

I generally agree with Andy's point, but would just like to throw a spanner in the works. As I think is common knowledge, George Harrison was successfully sued for "My sweet lord" being an infringement of the The Chiffons' "He's so fine". Harrison's problem in this scenario was not that he directly copied "He's so fine", nor that he imperfectly remembered it, but that he "subconsciously" copied it.

You can read a little about it in this Wikipedia article.

The more reasoned position in UK law is that the infringer would have had access to the original work. You've pretty much admitted that already, so there would be nothing further to prove on that front. The other element would be that what you did was a "substantial" copy of the original. That doesn't mean that you copied more than half the film, it is more nuanced than that. What we can say about the image that you wish to use is that, although it is a short part of that particular film, the entire film, and the subsequent series of films, hinges around that scene. So I think, without doubt, any copying of that part of the film would be classed as "substantial".

Even if it were not, I am sure that there are stills of that scene that were used in publicity for the film, and any imagery taken from those would almost certainly infringe the photographer's rights.

I would also point to the decision of the High Court in Designers Guild v Russell Williams where it was found that the respondant's design for textiles infringed the claimant's, even though they are quite different (sorry, don't have an image to post) and the ultimate source lies elsewhere (impressionist paintings). One of the limbs of this finding was that the designer for the respondent had "access" to the original, ie they had seen it, or had potentially seen it, in some form or another.

This decision was overturned on appeal, but ultimately affirmed in the House of Lords.

I think the overall point of these cases is that one does not need to copy directly, or even consciously, to be found infringing.

[AndyJ]

I don't entirely disagree with Typonaut's analysis here, especially in the light of two recent decisions by His Honour Judge Birss in the Patents County Court (Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1 and Abraham Moon & Sons Ltd v Thornber & Ors [2012] EWPCC 37) where the degree to which the idea may have been copied seems to have counted almost as much as any infringement of the expression of the idea. Neither decision is binding on the superior courts, but they may just indicate where things are headed in terms of jurisprudence.
That said, I really don't think that a picture of the Statue of Liberty sticking out of the sand really constitutes a substantial part. I seem to recall something similar from a disaster movie in which New York was flooded.

[AndyJ]

Coincidently ...
Just by way of contrast here's a post about a decision on a not dissimilar issue in the US First Circuit Court of Appeals: 1709 Blog

[typonaut]

That said, I really don't think that a picture of the Statue of Liberty sticking out of the sand really constitutes a substantial part. I seem to recall something similar from a disaster movie in which New York was flooded.

I think that it doesn't really matter one way or the other if there have been other depictions of the Statue of Liberty in various states of disrepair, what matters is the source of the copying. We already have a statement to that effect, so we don't need to debate that point. I think we also know from the original poster's comments is that they see the scene as being iconic (see the topic title for this thread).

What remains for debate is whether that scene in Planet of the Apes is "substantial" or not. I think you'll find that most aficionados of the genre would agree that the entire premise for the film hinges around that scene. I think one would need to question why the original poster would want to copy that image if it were not "substantial". From that perspective I'm fairly sure that a court would find, that if there were copying, then that copying would be substantial.

[davej]

Wow, that was a helpful discussion. I think I'll add specific scenes to my list of things to avoid.

[reform]

Here's an interesting example on this subject. How are these NOT infringing copyright? They name the films, the actors, and feature key design elements of said films without any sign of licensing.

w w w . moxycreative dot com / dressthepart / topgun dot html

It sounds like your tshirts are a similar concept to these posters.

[typonaut]

Here's an interesting example on this subject. How are these NOT infringing copyright? They name the films, the actors, and feature key design elements of said films without any sign of licensing.

Here's the link: http://www.moxycreative.com/dressthepart/topgun.html

It sounds like your tshirts are a similar concept to these posters.

Let's just take the Top Gun example. The title itself is not protectable in copyright, it doesn't meet the de minimis standard (there isn't enough of it), and probably the logic behind that is that in that short form it is difficult to have the kind of novelty that copyright requires in order to have protection for any element.

The next element that we could consider is the jacket. Apart from anything else (is this a copy of any jacket from the film), there's no real space for the protection of clothing in UK copyright law (perhaps it could be protected as a registered design, but I don't really know anything about that area) - I think you'd probably have to try to show that it was a work of artistic craftsmanship, and I don't think you could do that.

People's names and short factual statements aren't the subject matter of copyright ("A Tony Scott film"). In the UK you could infringe someone's moral rights, for example, by false attribution, if it read "A Ridley Scott film", then Ridley Scott would have a case against the publisher (but that's an aside).

So, overall, I can't see anything in this poster that would infringe copyright in the UK.

However, if there was a trademark for "Top Gun", then these posters could infringe trademark in the UK. Even if there was not a trademark it is possible that, in the UK, there could be a case of "passing off", as the creator of the posters is trading on the "goodwill" of the film.

But, as you'll note, these posters are being sold in the USA, and the law is different there - I don't know if the passing off infringement would exist there.

Also, it may be that the "Top Gun" "owners" just cannot be bothered to enforce any rights they may have - and that is a requirement in such cases.

Overall, significant differences between the laws covering these two types of "homage".

[AndyJ]

Hi reform,
Welcome to the forum and thanks for your comment.
However I suggest that, in fact, there is absolutely no copyright infringement involved in any of those posters. Here's a clickable link by the way since you aren't able post links yet. Moxycreative.
Film titles and the names of the stars and directors etc cannot be subject to copyright, and the images such as the flying jacket in the Top Gun poster are drawn afresh (much as the OP proposes to do) although I would say that most of these images have only the slightest of connections with the films whose titles appear with them. This is unlike the argument Typonaut makes, where he maintains that the Statue of Liberty image is central to the Planet of the Apes movie, and therefore reproducing it amounts to copying a substantial part - something I disagree with. The flying jacket picture alone would not bring to mind the film Top Gun, assuimng there were no other indications. The leather jacket does not feature in any of the action sequences, where Cruise is wearing a regular flying suit, and while the motorbike scenes (where he does wear the jacket) may be memorable, in my view that doesn't make them a substantial part of the film in the way in which UK copyright law recognises the doctrine. Under US copyright law, there would be even less grounds for claiming infringement because the posters are clearly transformative - a well established form of fair use in the US.
There may be a trade mark issue if the film titles have been registered as trade marks (for use on posters), and the trade mark owners can convince a court that there is a likelihood of an averagely informed person being confused about whether these posters are connected to the original films. That would be the burden of proof under the UK Trade Marks Act 1994. The US legislation (the Lanham Act 1946) is fairly similar to our law, although US caselaw on trademarks (that's the way Americans spell it, we use two words) is somewhat different.

Afternote: That's what you get by stopping to make a coffee: Typonaut beat me to it. But fortunately we pretty much agree in our comments.

[typonaut]

...and the images such as the flying jacket in the Top Gun poster are drawn afresh (much as the OP proposes to do) although I would say that most of these images have only the slightest of connections with the films whose titles appear with them.

I agree with Andy that probably there is no copyright infringement in these posters. But, I just would like to address the point that he has made here. It does not matter whether something is drawn "afresh", it can still be infringing: see the Designers Guild case above (where there is no doubt that the pattern found to be infringing was drawn from scratch) - the real issue is whether there has been copying, and as in the George Harrison case that copying does not need to be deliberate, or even conscious.

There is also no defence, in the UK, in transforming a three dimensional item into a two dimensional representation or vice versa: see CDPA s17(3). So claiming that a drawing does not infringe a physical jacket would not work (if you could show that the jacket was the subject matter of copyright in the first place, which I don't think you could).

[typonaut]

...in the light of two recent decisions by His Honour Judge Birss in the Patents County Court (Temple Island Collections Ltd v New English Teas Ltd & Anor [2012] EWPCC 1 and Abraham Moon & Sons Ltd v Thornber & Ors [2012] EWPCC 37)...

I think the important element of both of these cases, and Designers Guild, is that the courts have found that there is an intention to copy. Despite there being prior art that may have influenced all of the "original" works that were copied.

The same element exists in the original poster's question: a stated intention to copy an existing work - even where there may be other, pre-existing and non-infringing works, that may have provided an influence.

Andy and I can disagree over the nature of "substantial" copying, but I think the courts deliver a clear message here about how prior art comes to be a defence, or not.