I’ve always loved legal scenes in movies. As a kid, it was my first exposure to how the law works. In one of my classes in 7th grade, the teacher had us watch the Sidney Lumet movie 12 Angry Men. Even though it was from the ‘50s, it held up. I also saw an episode of All in the Family where Edith was on a jury, and she was the only one who voted “not guilty” on a trial, upsetting Archie, who was watching on TV. In high school, my journalism teacher had us watch Absence of Malice. Of course, on my own, I saw many legal films that were great.
Yet recently, it’s been a different element of films and legalities that have fascinated me after watching the brilliant comedy Palm Springs (Andy Samberg) on Hulu. It’s the same concept as Groundhog Day, and I wasn’t sure how legal it is to do that. Obviously, if you remake “Ghostbusters” you’re getting whatever permission is required to do that (although it’s a shame permission was granted for the 2016 reboot). Just like when a rap song samples a previous song, there are contracts signed. And when there isn’t, big lawsuits.
I was talking to Queen guitarist Brian May once, and when I asked about Vanilla Ice using the music of Under Pressure, he said, “I didn’t care. My kids loved rap and played it for me. I thought it was cool. The record company called a few days later and said ‘Well, we’re not cool with it.’ And a week later, I got a check for a million dollars.” The song was #1 at that point, making it a nice payday.
A few years back, Robin Thicke’s “Blurred Lines” lost in a lawsuit to the Marvin Gaye estate, for sounding too much like “Got To Give It Up.” When “Blurred Lines” came out, I was at a 4th of July party and said to my friend Veronika, “I like this song. I liked it when Marvin Gaye did it, too.”
Yet the $7 million that Thicke and Pharrell Williams owed the Gaye estate surprised me. I thought they were different enough that they should have won that case.
Creedence Clearwater Revival’s old record label sued singer John Fogerty, because his solo record sounded too much like CCR. How bizarre is that to even comprehend?
Yet most people I know (many of them musicians) don’t think George Harrison’s “My Sweet Lord” sounds like “He’s So Fine.” But the quiet Beatle lost millions in that suit.
In movies, these lawsuits are non-existent, and I don’t understand why.
When Napoleon Dynamite came out, Elvis Costello made a ruckus saying they stole that name from him. He had done an interview where he admitted, while touring, he’d check into hotels under the name, so fans wouldn’t call the room. The filmmakers deny that’s where they got the name, but that would make that the weirdest coincidence ever.
When the Russo brothers (Avengers: End Game) did the comedy You and Me and Dupree (Owen Wilson), the band Steely Dan wrote a 9 page letter ranting at them stealing that from the song they did called “Cousin Dupree” which also had a similar story. I’m not sure why the band wasn’t honored by that. When I interviewed Ian Anderson, the singer/flutist of Jethro Tull, he talked about The Eagles stealing a riff from one of their songs. He also told me about how in the movie This is Spinal Tap, the character Derek Smalls (Harry Shearer), was taken from a fictional character he had on his album “A Passion Play.” He once had Shearer come up onstage at a concert in L.A. and he sprung that on him. Shearer had no clue what he was talking about, saying he just came up with that name on his own. Is that a coincidence? It seems unlikely.
Yet this isn’t about movies using song titles for their titles, or even using previous movie titles (which always annoys me). I don’t know why filmmakers can’t be more original (I mean, Tarantino loves the movie Inglorious Bastards, so he took that title, and just spelled it different; what’s that all about?)
The filmmakers behind Palm Springs aren’t hiding the fact that it’s the same premise as Groundhog Day. They mentioned that movie in interviews (along with mentioning they love the Tom Cruise film Edge of Tomorrow, which deals with a much different “time loop”). So to figure out if there could be a lawsuit over this, I talked to a lawyer in North County named Jayson Lorenzo of J. Lorenzo Law. He specializes in intellectual property and entertainment matters.
JOSH BOARD: First I have to ask, do you have a favorite courtroom scene or lawyer film?
J. LORENZO: To be honest, I don’t really watch lawyer movies, so I don’t have one. I purposely stay away from them, since I deal with this every day.
JOSH BOARD: I get that, but I’d still think you’d have a movie like Civil Action or A Few Good Men. Even if they’re over-the-top and not realistic.
J. LORENZO: In regards to how realistic, they’re not very. They’re dramatized for TV or movies. I remember the ‘You can’t handle the truth!” scene, but I can’t even remember what he was being cross-examined about. I remember the look on Jack Nicholson’s face, but that’s about it. The one movie some friends reference, is the Joe Pesci film.
JOSH BOARD: My Cousin Vinny?
J. LORENZO: Yeah. People always talk about that.
JOSH BOARD: Lawyers probably enjoy the humor in that, the way musicians love Spinal Tap. I just can’t believe there wasn’t a movie like The Verdict or anything like that.
J. LORENZO: Growing up, I used to watch a lot of Perry Mason, and I remember thinking I wanted to be like him. Some of those black and white scenes and the examinations, and sometimes it might just have something to do with a dog in the yard; but I liked the way he commanded a witness.
JOSH BOARD: This is off the topic I wanted to talk about, but how is Covid-19 changing things in regards to the law?
J. LORENZO: There’s a lot of different ways to answer that. I do quite a bit of litigation. From the courtroom perspective, a lot of dates were pushed back and there are no in person appearances right now. A lot is done via telephone, and courts aren’t open currently. Because you can’t actually go in, there are a lot of staffing issues, from what I’m hearing. I’ve had a couple of Zoom meetings, a lot of things with Zoom meetings, rotating people in and out, and deadlines all being pushed back. I just appeared on a court call arguing a motion and everything is via phone on the civil side. I haven’t stepped foot in the courtroom since February, or even a courthouse. You’re having meetings with other lawyers on Zoom. I just had one with a client, and everything is online, video conference, or by the phone. I guess it isn’t too bad.
JOSH BOARD: Can you explain to me the difference between songs, and songwriters being sued, and why that doesn’t happen in the movie industry with screenwriters? Mick Jagger, on his solo album, did a song called “Just Another Night” that was a hit. He was sued by a Jamaican singer that had a song of the same name, that was a hit in Jamaica while Jagger was in Jamaica for a long time. I thought they sounded so much alike, yet Jagger won in court because they showed that there had been over 30 songs, since the 1930s, with that exact same title. Yet it seems most times, songwriters win these types of lawsuits. At least the high profile cases we hear about.
J. LORENZO: So, in music, there’s a lot of things that can be copyrighted. There’s the composition, the lyrics, a sample of the song, taking the melody. In music, it’s an interesting thing. You can pick and choose what it is that’s infringing. It doesn’t even have to be the whole song, but just a little sequence in the chorus. If someone hears it and thinks — hey, that’s from my song. It comes down to originality, and if they can prove nothing is so original, if it’s been used hundreds and hundreds of times before. Yet if there’s a sequence of chords played, and they’re exactly the same…a C, D, F, A, or whatever…that’s easier to prove. A lot of it comes down to doing due diligence and hiring an expert who can say things like ‘Yes, this is original’ or ‘No, there’s nothing unique about this.” The notes can be shown to be the same, and it’s easier to bring or make a claim on, or to see it. In a film or a book, there’s a lot more ways you can tweak an expression. Especially playing around with plot. Maybe the family has a sister that’s six-years-old and one that is two. Another movie has those same kids that are that age, but it’s not the same movie. But if you look at them and can add up the similarities, and whether or not it’s even similar; and then, is that even original. That can’t even be protected.
JOSH BOARD: Well, in Groundhog Day, he wakes up every morning, and the day repeats. In Palm Springs, the same thing happens, even though there are many different things happening and different jokes. Many of the jokes are similar in nature, though.
J. LORENZO: With Groundhog Day, I understand what you’re saying, but copyright…it does not protect an idea. There’s expression in a tangible medium. That’s the language we use — tangible medium. You can’t just copyright an idea. What’s copyrightable is…how the idea is expressed. Tangible medium is the magic language. In music, if you have an idea, the way you express that idea is a series of notes. A certain note progression or pattern is easy to prove, and the combination you can hear, and it’s easier to see. If you have the idea of Groundhog Day, that somebody wakes up and it’s the same situation over and over again…there is intellectual property. But take the idea of someone waking up, and…let me add a twist to it. Copyright protects original expression. That’s the other idea in copyright. For example, chord progression 200 years ago is not original anymore. The copyright expired and someone else has done it. That’s another issue. And that’s a defense; that it lacks originality. If you have a movie with a 60-year-old guy, wearing a black vest, married to a woman….and you do another movie with the same name and situation, well….maybe you make him Asian, and 21-years-old, and he’s not married. And now when he wakes up, he’s playing basketball everyday. See how that expression is different from the original story? Usually in a movie, you’re looking at things like, is the plot the same? Are the character developments the same? Are the words they’re using the same? Is the setting? It’s a more total concept of feel, mood, sequences, and setting. All of that, goes into the expression. The expression and how the idea is being expressed in the movie. You can tweak that around a lot more; but because of the notes in a song, that’s the reason in music it’s easier to prove those cases.
JOSH BOARD: Again, off topic, but…are there any crazy entertainment stories you’ve been involved in that you can tell me about, or some of your colleagues?
J. LORENZO: I don’t think I can disclose anything that wouldn’t violate attorney client privilege. I was involved in a case against Conan O’Brien last year.
JOSH BOARD: Oh my god! I remember that story! I was so disappointed in Conan when that happened because…well, I’ve argued this case with a handful of friends of mine that do stand-up comedy. They were sure it was just a coincidence that Conan used similar jokes, but I read those jokes and don’t think there’s any way Conan’s writing staff would come up with the same ideas. Other than one about the Patriots winning the Super Bowl, they were just too obscure. It’s one thing in the ‘70s, when comedians all talked about airline food being bad, or a clerk at 7-11 that doesn’t know English. But now, with the internet, and Conan having a writing staff of 10 or 12 people, they’d obviously look at websites and other comedians. I would do that, to get some ideas. There’s so much pressure if you don’t deliver. There have been funny people fired from Saturday Night Live, because their bits were never used or weren’t that funny. That’s a lot of pressure.
J. LORENZO: I can talk generally about the case, since it was in the paper. It does matter what the subject matter of the joke is. If it isn’t a well-known news story, or an event that everyone is going to be talking about, it makes it more obvious. Some of the stories were a bit more obscure. And if it happened once, sure. Twice, maybe. But three or four times, you get past the point of something being a coincidence. We wouldn’t have had a case if it was just one time or even two times, but multiple times and within hours or less than a day of each other [after his client posted the joke]. They just don’t add up that way.
JOSH BOARD: I was also baffled and disappointed, that after they settled…Conan released this story explaining why they settled, because it was just easier, and that his writer didn’t steal those jokes and he went on and on. I just didn’t buy a word of it. It surprised me that Conan didn’t realize what was happening.
J. LORENZO: Look, I’ve taken the position; it speaks for itself. You can explain it any way you want. I can’t speak to what he’s thinking in trying to explain it. He has every right to say what he wants. There’s freedom of speech.
After I was done talking with Mr. Lorenzo, I looked up the piece Conan wrote for Variety about the settlement. It gets me angry every time I see it. He talks about being sued by a man in San Diego, and how he or his writers had never heard of him or his blog and that “short of murder, stealing material is the worst thing any comic can be accused of, and I have devoted 34 years in show business striving for originality.”
He later gives an example of one night, he, Jay Leno, and Letterman, all had a very similar joke about Dan Quayle being dumb. Well, what’s dumb is — that example. Everyone was joking about Quayle being dumb. And we all understand (especially comedians), many people can come up with the same premise. They call it “Parallel thinking.”
At the time, a comedian friend sent me a copy of the jokes, and I could buy one of them being a premise many people thought about (it had to do with the Patriots winning the Super Bowl on that horrible call Seattle made by not running the ball in and throwing an interception at the goal line). But the other jokes…I just don’t believe more than one person could have come up with them.
As I was re-acquainting myself with this story, I saw a stand-up comedian I know at Liberty Tobacco, and that’s where I was conducting this phone interview. His name is Bob Lincoln, and he not only did stand-up, he wrote jokes for many comedians. He also briefly managed Sam Kinison. I asked him why comedians never seem to get sued for stealing material. Robin Williams was known to do this, but would often pay comedians after they complained. Amy Schumer stole many jokes in her stand-up career, as has George Lopez and a few others. All of them were called out for it, but none of those resulted in lawsuits. Lincoln said, “I’m not sure why that is. It’s a good question. Maybe the comedians don’t want the negative attached to doing that. Going way back, Milton Berle was notorious for stealing jokes. Oftentimes, that helped make other comedians’ careers. Some of them would say ‘Well, he stole my joke, but he told it a lot better than I did’.”
He added, “You also have to realize, we’re all living through the same things, so it’s not uncommon for comedians to think of the same premise and write material around it. That doesn’t mean a joke or idea was stolen.”
I replied, “I get that. I mean, if I come up with some joke about how my dating life has improved because I’m wearing a mask now, and women can’t see how ugly I am,” I just thought of that off the top of my head, but can see many comedians writing lots of the same bits about wearing masks. I understand that, but some of these bits are so specific. It baffles me why there aren’t more lawsuits. Now, if Joe Biden plagiarizes a speech, he gets made fun of, or it hurts his campaign; but I wouldn’t expect lawsuits from that. With comedians that, some only getting paid $50 for a set that night, it makes no sense.”
Lincoln said, “That’s a good question. I’m going to look into it, and I’ll have an answer for you next time.”
At least that will keep me from bugging J. Lorenzo with another phone call.