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How do you copyright a gag?

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#1 · Posted: 21 Jun 2004 08:23 · Edited by: jock123
In the Tintin font thread, Admin posted the following:
Moulinsart own the Tintin font; according to their Rules Concerning the Use of the Work of Hergé on the Internet (aka the Charter), the font is protected by copyright:

A. The Work and the rights of Hergé and his legal successors

1. Moulinsart S.A. (162 avenue Louise, 1050 Brussels, Belgium) is the exclusive worldwide owner of all exploitation rights related to the work of Hergé, particularly but not limited to The Adventures of Tintin. Copyright protects not only the comic albums and the drawings (cases, strips, plates, extra-textual drawings, covers), script (scenario), texts, dialogues and gags, but also the settings, the characters and their particularities, the names, titles and imaginary places, onomatopoeia, fonts and other elements of the work of Hergé.

There are some very interesting claims in that text! I am not a lawyer, but have worked for a long time in publishing and publishing-related companies, so have at least some knowledge of the subject of copyright, and I think that there is some stretching of the protection they would actually get in terms of their rights.

There is no doubt that there is total and complete justification for stating their right to exploit the works of Hergé (that is their license from the Fondation, after all), and to state claim over the artwork, images and liknesses etc. he created.

However, copyright does not cover the *idea* of a creator - this is why two film studios can bring out two movies about asteroids crashing into the earth without either of them being able to say, “But that's *my* idea!”, or how another makes a movie in which the son of the lion king fights his uncle to get the crown back, when a Japanese studio already made a cartoon on the same theme (actually Disney get it done to them in turn - look at the cheap knock-off videos in Woolworth's which appear to tell the story of the Jungle Book, the Hunchback or whatever, as soon as the Disney pic is in the cinema).

So when they say that they have copyright in the gags, I’d say “Wellllllll, prove it!!” I honestly can't see how they can. Largely the gags are pratt-falls, other physical comedy bits and the joke of having a deaf old man misunderstand things - all of these are old, old gags, which to be frank, Hergé often appears to have borrowed from silent movies - for example there are scenes of Chaplin on roller-skates decades before Hergé made use of the idea, and Harold Lloyd comes to mind for Tintin scaling the outside of the sky-scraper in Tintin in America (I'd ask Tybaltstone, who seems to have far more expertise in matters of the Chaplin era than I, if he can make any proper correlation between movie sources and the albums).

Legend has it that at RKO Studios, Howard Hughes was notorious for firing off cease and desist notices to anyone who he felt was trespassing on things that were his, even when they weren’t or he shouldn’t have. Some wag managed to goad him into sending another studio a telegram to say that, as his previous Western had contained some line like, “Head 'em off at the pass!”, they couldn't use it; they then launched a sequence of replies saying that they had had the line “Hands up!” in a picture, so Hughes couldn’t use it...!

Warner Bros. tried to stop the Marx Brothers using “Casablanca”, in the title of A Night in Casablanca, because they tried to say they had copyright in it; Groucho responded that it would be unlikely that anyone would mistake Harpo for Ingrid Bergman, and that they had been using “Brothers” for longer than Warners had, so who was copying whom?

Perhaps the most blatant steal of a gag is the Indiana Jones shooting the swordsman in Raiders; this was in actual fact a Tommy Cooper gag, remembered by Peter Diamond, the fight arranger, and not (as legend would have it) either thought up by Harrison Ford or just done on the spur of the moment.
Mr. Diamond appeared in a sketch in around 1960 as a top French duellist, opposite Cooper as a shambling no-hoper in a sword fight. Diamond was immaculate in fencing whites, Cooper wore cricket pads, a dirty pull-over and carried a tennis racquet; Diamond did a series of complex warm moves with his sword, really swashing his buckle and looking every bit as though he’d trounce Cooper in the fight - then Cooper pulled out a gun and shot him.

Gags aren’t copyright…
#2 · Posted: 21 Jun 2004 15:41 · Edited by: Jyrki21
I'm not a full lawyer yet, but I'm 2/3 of the way through law school and currently work at a firm, so here's my opinion. :)

I think you're quite right that Moulinsart is simply overstepping its boundaries in an attempt to intimidate. A lot of people/corporations will claim things they can't rightly claim in an effort to dissuade people from doing things, because 99% of the general public isn't going to dispute it. (A good example is waivers of liability... just getting you to sign something doesn't simply free the company from any sort of mishap which might befall you, but they tell you it does, so most people won't sue if injured).

So I think your analogy to the Hughes situation is quite apt.

That said, in the common law system (of which a Belgian company isn't a part, mind you, but since most people who use this board live in common law regimes, we'll stick with it), it is possible to acquire intellectual property rights in a whole lot.

It differs slightly from jurisdiction to jurisdiction, and while the property law I have studied is from the province of Ontario (in Canada), the themes are similar throughout.

I haven't yet studied intellectual property as a formal course, but we did cover some of these areas in our basic property law course in our first year (and law is an advanced degree in North America, so by 'first year,' I don't mean fresh out of high school!)

The most likely area where Moulinsart could claim property rights (if they were in the U.K., for example) would probably be 'passing off.' If you do something to indicate that your product is somehow linked to, or sold by, another company, either by placing a logo or an erroneous message on it, you could be liable for damages. What Moulinsart would probably have to claim is that by having a character do something distinctive which resembles a Tintin moment (say, shooting himself with an ink gun or hiding opium in a crab tin), a rival publication was trying to pass itself off as a Tintin comic.

Of course this argument is so farfetched and absurd that they would never win (except with the most moronic of readers, but the standard for these things is always the 'reasonable person,' so it wouldn't matter). But that's likely what they're trying to claim.

The only other claim I can think of is a regime of acquired rights that I happen to know exists in England, but I'm actually not sure if we have it in any Canadian province here. Some of you might remember a few years ago that Victoria Adams ('Posh Spice') tried to sue a soccer (football) club for calling themselves "The Posh" as a nickname, even though they had had it long before Adams' 15 minutes of fame.

Now she didn't win, of course, but the claim she was trying to make is that when people in England here the word "posh" (I suppose it's redundant to specify people in England, since no one else uses that word to my knowledge!), they immediately think of her. (Yes, roll your eyes, but suspend your disbelief for a moment). Therefore, the soccer/football club was essentially appropriating a part of her personality and making a profit off of it.

Typically to win on one of these suits, you have to show that a business is actually implying that you endorse their product when you never necessarily have. But the point of the Posh Spice story is to show that these rights are a little bit fluid... just in the way that you can lose your trademark of a brand name when it becomes commonly use (like 'kleenex' for tissues or 'band-aids' for rubber bandages), it is likewise possible to acquire property rights based on general usage (I think!).

So if Moulinsart could show, essentially, that smuggling opium in crab tins is synonymous with the Tintin adventures, they might try to argue that anyone using this 'gag' is basically stealing from them. I think they'd never win, as allusions are freely made from one work of art to another in this fashion (and, as mentioned, Hergé himself did it all the time), but this is probably what they're getting at.

For the record, I think their attempt to copyright their onomatopoeia is even more hilarious! (Oh, now "bang" and "boom" are words owned by Moulinsart?!)

Whew! Hope that helps! :P
#3 · Posted: 21 Jun 2004 17:18 · Edited by: jock123
Excellent! Thanks, glad to know I was pretty much in the ball-park (or barrack-room, more like)!

Your Posh/ The Posh analogy is a good one, and again underlines that where the law is concerned you can’t always bank on logic to prevail! The expression “the law is an ass”, didn’t come about for no reason at all...

An example of property rights acquired might be the Alfred E. Neuman face - the grinning idiot used by “Mad!” magazine. The artwork is in fact much older than “Mad!”, and originally was accompanied by the slogan, “What? Me worry?”, and had some sort of political campaign use which now escapes me. It sort of bubbled along in use, and “Mad!” took to using it partly because it was still well enough known to be still recognised when they started (in the way that Alfred Leete’s Kitchener “Your Country Needs YOU!” poster re-emerged in the 60s); then sometime in the last few decades they gained the sole rights to its use, claiming that to see it made people think only of them.

A similar battle seems to have been fought over the basic “Smiley” face (yellow circle with the eyes and mouth) - and that was created in living memory. I won’t rehearse the story here: read what Cecil Adams wrote.

I’m glad you picked up the onomatopoeia thing, because I couldn’t even think of a serious way to deal with it...

It may never have travelled, but there was a bit of an outcry here when Matt Groening got rights in the word “D’oh!” It was a word in use in Britain since at least before WWII, and more importantly was the expression of disbelief/ outrage/ anger employed by Anthony Buckeridge in his “Jennings” radio series and books since the 1940s/ early 1950s. How does one write/ express the sound, if Mr Groening has exclusive use of it? Furthermore it can be found even earlier than Jennings, as it has been said to be a catch-phrase of the late great comic foil of Laurel and Hardy, James Finlayson, who in addition to being the master of the “double-take and slow burn”, was wont to punctuate his exasperation with exclamations of “D’oh-!”

I suppose they might be able to make some case for “Woah” for Snowy (mind you, I seem to remember a song going “Woah yeah!” ;-) ), and “Toc! Toc!” for someone tapping at a door...

An amusing thought (well, amusing to me) just occurred in the case of allusion. At Greenwich it was pointed out that Hergé probably included a completely blacked out panel in Soviets as a rather high-brow modern art reference to Black Square by Kazimir Severinovich Malevich (now in The Hermitage museum). Has Hergé copied it completely, or just enough to be fair use? Is it plagiarism, passing off, an homage or what??

For those wishing to check out how similar they are, I can’t remember where about in the book it comes, but Kazimir’s original is here.
They share a lot in common, I think you’ll agree... ;-)
Trivia Challenge Score Keeper
#4 · Posted: 21 Jun 2004 17:33
Some good points there Jyrki21, I think you've covered it all. I've just graduated with a law degree in the UK so the system I'm familiar with is British (or rather, English) law, but it is fundamentally the same in terms of intellectual property.

Any decent judge in a civil court will view these claims subjectively - they'll look at the circumstances of the alleged "infringement" and consider all of the particulars. It's not simply a question of Moulinsart saying "Gags are copyrighted: if you use a gag that's in a Tintin book you're in breach of copyright". It's up to the lawyer (at least in a country using adversarial trials, as in the UK and Commonwealth) to argue along the lines of: this gag is an "old chestnut" that most people know; it's been used plenty of times before; it's not fundamentally similar to the Tintin gag etc. Despite their charter I doubt Moulinsart would pursue a company who has a character "shooting" themselves with an ink-pistol (think how many water-gun gags there are around!) - it's too inspecific and they wouldn't have a leg to stand on.

Incidentally, in the UK there is no copyright on titles per se: hence I could publish a book called "Explorers on the Moon", covering much the same ground as the Tintin book, and as long as it wasn't a direct steal it would be fine. However "Tintin in Tibet" and "The Calculus Affair" would probably not be as they use names of characters as integral parts, thus making a copyright infringement easier to prove. Perhaps Jyrki21 could confirm whether this is the case in Canada?
#5 · Posted: 21 Jun 2004 17:37 · Edited by: tybaltstone
Page 102 in the 1989 book of Soviets... Hergé copied Malevich exactly!
#6 · Posted: 21 Jun 2004 19:29
Incidentally, in the UK there is no copyright on titles per se: hence I could publish a book called "Explorers on the Moon", covering much the same ground as the Tintin book, and as long as it wasn't a direct steal it would be fine. However "Tintin in Tibet" and "The Calculus Affair" would probably not be as they use names of characters as integral parts, thus making a copyright infringement easier to prove. Perhaps Jyrki21 could confirm whether this is the case in Canada?

Well, property falls under provincial jurisdiction, so it would depend which province you are in (especially in the case of Quebec, which has an entirely different legal system), but I believe it's the same idea. In fact, even more liberal than you say, since literary allusions, proper names, etc. are often used in titles (otherwise it would be pretty impossible to write a biography).

For example, I don't think Frederic Tuten needed any permission to write a novel called Tintin in the New World, since I doubt the Hergé foundation would ever grant it if they knew what he was up to. Although you'd also think he'd need permission to portray the characters in his book, so who knows?

The only time you really have to start worrying is in the passing-off department (like if Rodier sold his version of Alph-Art as a real Tintin book) or appropriation of personality, like if people started slapping Hergé's picture on -- I dunno -- milk cartons to imply that Hergé would have endorsed their milk.

But in terms of sheer titling, I think you have pretty free reign.
#7 · Posted: 21 Jun 2004 23:52
Jyrki21 wrote
I don't think Frederic Tuten needed any permission to write a novel called Tintin in the New World, since I doubt the Hergé foundation would ever grant it if they knew what he was up to. Although you'd also think he'd need permission to portray the characters in his book, so who knows?

I believe that Tuten knew Hergé personally, and that the use of the characters and situations was agreed; presumably he saw it as okay because Tuten is reckoned by some to be a serious 20th C. literary figure (me, I’ve never managed to really start it, let alone finish it, so my opinion of him isn’t high).

I don’t know if the fact that the book was published after Hergé was dead perhaps was part of the deal, but given the nature of the book, it seems possible.
#8 · Posted: 22 Jun 2004 04:11
hey the no. of lawyers in this groups- is astounding. i myself am a lawyer from Trivandrum, India and what is stated above - regarding copyright is absolutely true and correct as per Indian law also. I liked the Marx brother anecdote,
#9 · Posted: 22 Jun 2004 09:33
Hey, Ed! I just noticed what you said at the start of your post. Congratulations on getting your degree!! Well done!

“Destination Moon” is of course a title that is used for both the Hergé book and the George Pal film, if we want a specific example. The Beatles wrote “P.S. I Love You”, precisely because Paul had always liked another song with the exact same title.

If I had the time, ability, inclination, and even the germ of a plot, I would be tempted to write a book about my fruitless struggle with differential and integral mathematics at school, which of course I would have to title “The Calculus Affair”...

Speaking as we were of the Tuten book, of course that has the Roy Lichtenstein image of Tintin on the cover; I believe that having spent almost his entire career copying frames and images from comics, without crediting the original artist for their effort, his representitives pursue people who copy his works or “style”; they even claim the Benday dot is his copyright, which is ludicrous!

If you slapped Hergé’s picture on a milk carton, would people in America think he was endorsing it, or that he’d run away from home?
Trivia Challenge Score Keeper
#10 · Posted: 22 Jun 2004 09:44
Many thanks jock123. Interesting point about the Beatles - other examples could be "Happiness is a Warm Gun" which John Lennon took from an article in a pro-gun magazine (spot the tragic irony), or "Because", a title belonging to quite a few songs before and since. Music copyright is an exceptional case though I believe.
I think all this about Lichtenstein highlights the fine line between "inspiration" or "homage" and plagiarism and/or copyright infringement.

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