copyright-palinoia-vs-lemonade

Is that really Lemonade or PALINOIA?

Lilian Guzman Copyright

A film-maker sued Beyoncé earlier this month claiming the pop icon copied elements of his short film. 

In the suit, Matthew Fulks also names Sony Music Entertainment LLC, Columbia Recording Corporation, and Parkwood Entertainment LLC. Fulks alleges that the trailer for Beyoncé’s recent film, Lemonade, copied short film PALINOIA.[1] Among the aspects copied from his film, Fulk points to the audio cues, timing and overall, “the total concept and feel.”[2]

The allegations, if proven, would be particularly damaging to Beyoncé, whose reputation is perhaps more reliant than most on the appearance uniqueness of her style and the originality of her music and videos.

So how could it even be possible that Beyoncé copied a relatively obscure, blip-on-the-radar independent film? As it turns out, Fulk was in direct contact with Bryan Younce, a high-level executive at Columbia recognized for assisting Beyoncé in the creation of Lemonade. Younce is no Beyoncé, sure, but that connection does make the possibility stronger than what it seems at first glance.

Similar issues were recently part of a now-dismissed case against Starbucks. As such, is this claim heading down the same path, or is there some sustainability in Fulk’s claims?

Hayuk v. Starbucks

Last year, Maya Hayuk sued Starbucks claiming that the coffee giant’s “Frappuccino Campaign Artwork” was substantially similar to several of her works. As a result, Hayuk contended, the campaign artwork infringed her multiple copyrights.”[3] Hayuk is an internationally renowned visual artist who previously licensed her work to companies such as Billabong, Microsoft and General Motors. Hayuk’s artwork is extensively reported and popular in print and online publications. So it was no surprise that Hayuk was contacted by 72andSunny, an advertising agent representing Starbucks, in the hopes that Starbucks could obtain permission to use Hayuk’s registered art in a future campaign. When no agreement could be reached, 72andSunny created a campaign for Starbucks using artwork Hayuk felt was similar to her own.

The Ultimate Decision: Hayuk

Unfortunately for Hayuk, the U. S. District Court for the Southern District of New York strongly disagreed. The court found that, as a matter of law, Starbucks did not infringe Hayuk’s copyrights, and so the court dismissed the case. Hayuk could not “state a viable claim for infringement of her copyrights,” the court said, “because the allegedly infringing Frappuccino Works are not substantially similar to the Hayuk Works.”[4]

To understand the opinion requires understanding of a few key concepts of copyright law:[5]

  1. “Copyright does not protect ideas, only their expression [yet], when ‘a given idea is inseparably tied to a particular expression’ so that ‘there is a merger of idea and expression,’ courts may deny protection to the expression ‘in order to avoid conferring a monopoly on the idea to which it inseparably is tied.’”
  2. And even then, “raw materials such as colors, letters, descriptive facts, and . . . geometric forms are part of the public domain and not protectible.”
  3. Lastly, when claiming that the total concept and feel of infringing work is substantially similar to the registered work, the court may find similarities “but nonetheless [hold] that substantial similarity [does] not exist because of overwhelming dissimilarities in the works.” 

Basically, Hayuk’s registered artwork may be fine art, but in court that does not mean automatic protection. Hayuk’s work creatively made use of colors, textures and geometric forms. Do you see where I am going here? Hayuk was creative with raw materials, and unfortunately, those elements are not protectible. But could it be that the total concept and feel of the two works were substantially similar? The court thought otherwise. “Although the two sets of works can be said to share the use of overlapping colored rays in a general sense, such elements fall into the unprotecible category of raw materials . . . [and] [t]he far more dominant dissimilarities in the specific aesthetic choices embodied in the particular works distinguish them in total concept and feel and preclude a finding of substantially similarity.” So Starbucks and 72andSunny made really good use of the unprotectable concepts and ideas contained in Hayuk’s art, and even then, the differences overwhelmed any similarities.[6] So what does this have to do with Beyoncé?

Fulk v. Beyoncé

Matthew Fulk is claiming “[the] LEMONADE Trailer is a derivative work of the PALINOIA Work that misappropriates the visual content, audio content (sound effects, dialogue, audio timing), mood, setting, theme, pace, and total content and feel of the PALINOIA Work.” And, he contends, the Lemonade Trailer is not only visually similar, but there are also similarities as to audio, mood, pace, theme, setting, and total concept and feel. Focusing on the total concept and feel, Hayuk provides a guideline on analyzing the viability of Fulk’s claims. 

Did Lemonade copy PALINOIA?

To begin, the question is whether Fulk’s given idea is inseparably tied to his expression. “[C]opyright law defends only expressions and not ideas, [therefore] the concepts underlying an expression, however ingenious, remain free for anyone’s taking.”[7] In fact, artistic expression draws from the pool of creative ideas—the public domain—and as such, raw materials are unprotectable. Basically, the name of the game is “Finding Copyright Infringement.” In order to play, the court looks at the two works and creates a list of similarities and dissimilarities. If the similarity is on the basis of a raw material, then cross that out because it doesn’t count. If there are more similarities than dissimilarities, there is probably infringement.

Now looking at Fulk’s exact claims, Fulk complied individual similarities when requesting protection of his ultimate expression. To highlight some of Fulk’s claims:

  1. Visual Similarity One: Graffiti and Persons With Head Down—Both videos feature images of “the central character in a state of distress” which are claimed to be strikingly similar because each character is “leaning against a stable structure, with head down, face hidden from the viewer.” And not only are the characters in similar moods and positions, but also in a similar environment with “hand-painted graffiti words in similar styles” displayed on the structure.
  2. Visual Similarity Six: Title Card Screens—Fulk’s film and Beyonce’s trailer both “feature title screen using only white text on a solid dark color background, with the titles of works centered in the middle of the frame printed in all capital letters and strikingly similar fonts.”
  3. Similarities in Mood, Setting, and Pace—In both videos, the mood is “heavy, dark and angst-laden,” the environments are similar, and the pace is “a rapid procession of short scenes or montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes.” 

But Fulk made several claims in the hope of describing that these similarities in conjunction prove that Beyoncé has copied the total concept and overall feel of PALINOIA. One cannot forget “the total-concept-and-feel [phrase] functions as a reminder that, while the infringement analysis must begin by dissecting the copyrighted work into its component parts in order to clarify precisely what is not original, infringement analysis is not simply a matter of ascertaining similarity between components viewed in isolation.”[8] Ultimately, is Beyoncé taking advantage of the unprotected elements in Fulk’s independent film like Starbucks did in Hayuk or is there a viable claim?

Basic Copyright Law—Beyoncé Style

In Hayuk, the Southern District of New York felt as though Hayuk was claiming protection for unprotected elements making her claim unviable, in some regard Fulk is doing the same. Particularly when looking at Visual Similarity Six, where Fulk is claiming that the black-and-white title screen is similar in both videos. Yet, the title screen is an artistic expression derived from the public domain and as such, an unprotectible raw material. In fact, the black-and-white title screen lacks the originality synonymous with a copyright because such title screens have been used in earlier films like Elephant (2003) or Dressed to Kill (1980): Should those creators feel as though their copyrights have been infringed upon by Beyoncé? The court may find that the black-and-white is rightfully a material of the public domain, and for that reason, a black and white title screen is crossed out on the list.

To contrast Fulk’s claims to Hayuk’s, the Southern District of New York found that Hayuk did not claim infringement upon her works as a whole but rather sub-portions of her artwork. In fact, in Hayuk’s complaint, the visual artist provided side-by-side depictions of the campaign artwork next to a cropped photo of her artwork. Fulk, however, did not completely alter his film in a manner that makes the two works more similar, yet the filmmaker does make claims to specific scenes in a severable fashion. There is a difference in length between the independent film and trailer, and as such, the film in question has much more content than the infringing trailer. Additionally, the specific scenes are not identically placed in both Lemonade and PALINOIA. For example, Visual Similarity One claims that the central character are in similar moods, positions and environments; however, the scene in question is a short segment of Fulk’s independent film, and in contrast, that same scene is a recurring focus of Beyoncé’s trailer. The trailer depicts Beyoncé, with her head down in a state of distress, and quickly cuts to several unrelated scenes before cutting back to Beyoncé, with her head down in her state of distress once again. The independent film does not follow that same artistic method, but rather Fulk cuts to the central character in distress and never returns to that same scene. So the scene itself is identical in both videos, yet the importance of the scene varies. And ultimately, it may be found that even though there are similarities in the scene, that that same scene is overwhelmingly dissimilar.

The Total Concept and Feel of Lemonade vs. PALINOIA

Overall, when listing each individual similarity in his complaint, Fulk chose unoriginal and potentially unprotectible elements to describe how his PALINOIA work was copied. Yet, the viability may lie in the combination of all these similarities if the elements are considered protectible. When evaluating literary work, an “examination would encompass ‘the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace and setting of the plaintiff’s books and the defendant’s works.’”[9] Similar to literary work, a video should also be examined by analyzing similarities in the mood, pace and setting. As such, both PALINOIA and the Lemonade trailer share the same mood, pace and settings making Fulk’s claims of plagiarism more viable. Additionally, the combination of these elements has great relevance, and in fact, “if the selection and arrangement are original, these elements of the work are eligible for copyright protection.”[10] But PALINOIA is not creating the mold for a new and different type of film. Previous films have combined a heavy, dark and angst-laden mood with a pace featuring a rapid procession of short scenes meaning there really isn’t a form of original expression in his independent film. Lastly, the court will look at the dissimilarities, and much like Hayuk, the court could find that the differences outweigh any similarities. Yet when doing so, the court keeps in mind that “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” And the Lemonade Trailer and PALINOIA work, in the end, are weirdly similar. 

Is Fulk Making a Viable Claim?

The possibility that Beyonce copied Fulk’s independent film is strong. In fact, a high-level executive at Columbia, who is in constant contact with the pop icon, was also in contact with the PALINOIA creator. And therefore, Beyonce could have easily accessed the film through Youtube[11] at the request of Younce, this high-level executive. Fulk’s Complaint also correctly plead that PALINOIA and Lemonade do, in fact, share similar scenes, audio cues, environments, mood, and theme which in conjunction create a similar concept and feel, however, the ultimate question to be answered is whether the dissimilarities overwhelm any of those similarities that the film and trailer share.

[1] Complaint, Fulks v. Knowles-Carter, No. 16-CV-4278 (S.D.N.Y. filed June 8, 2016).

[2] Complaint at 10, Fulks, No. 16-CV-4278.

[3] Complaint at 20, Hayuk, No. 15-CV-04887.

[4] Order Granting Defendant’s Motion to Dismiss at 6, Hayuk, No. 15-CV-04887.

[5] Id. at 7, 11.

[6] Id. at 8, 11.

[7] Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 132 n.4 (2d Cir. 2003).

[8] Id. at 134.

[9] Boisson v. Am. Cty. Quilts & Linens, Inc., 273 F.3d 262, 273 (2d Cir. 2001).

[10] Feist Publications v. Rural Tel. Service, 499 U.S. 338, 349 (1991).

[11] PALINOIA: On Youtube