Chuck Blore & Don Richman, Inc. v. 20/20 Advertising Inc.
5 U.S.P.Q. 2d (BNA) 1833, 674 F. Supp. 671, 1987 U.S. Dist. LEXIS 12458 (1987)
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Rule of Law:
The unique combination of stylistic elements in an audiovisual work, such as editing style, camera angles, pacing, and overall tone, constitutes protectable expression under copyright law, distinct from the unprotectable underlying idea.
Facts:
- Chuck Blore & Don Richman, Inc. (Blore), an advertising agency, created and copyrighted a series of television commercials featuring actress Deborah Shelton, which were characterized by a rapid-edit style and numerous close-ups.
- Duling Optical Corporation (Duling) and its advertising agency, 20/20 Advertising (20/20), decided to change their advertising strategy and use a celebrity spokesperson.
- After considering several celebrities, Duling and 20/20 finalized the decision to hire Deborah Shelton only after viewing a copy of Blore's copyrighted commercials.
- 20/20 obtained a tape of Blore's commercials from a talent agency, and both Duling and 20/20 admittedly made unauthorized copies of the tape.
- The director hired by 20/20 to create Duling's new commercials was given an unauthorized copy of Blore's tape and viewed it on the day of the shoot.
- In a letter, Duling stated its intention to produce commercials that were 'similar' to Blore's.
- Duling and 20/20 then produced a series of commercials for Duling's eyewear products, also featuring Deborah Shelton and using a similar rapid-edit, close-up visual style.
Procedural Posture:
- Chuck Blore & Don Richman, Inc. sued 20/20 Advertising, Inc. and Duling Optical Corporation in the U.S. District Court for the District of Minnesota.
- The complaint alleged copyright infringement, Lanham Act violations, and state law unfair competition claims.
- The defendants filed a motion for summary judgment, asking the court to dismiss all claims before a trial.
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Issue:
Does a television commercial that copies the distinctive non-textual, stylistic elements of a copyrighted commercial, such as its rapid-edit montage and use of close-ups, constitute copyright infringement even when the products advertised and the scripts are different?
Opinions:
Majority - MacLaughlin, District Judge
No, a television commercial that copies distinctive non-textual stylistic elements does not automatically escape liability for copyright infringement as a matter of law; such stylistic choices are protectable expression, and if they are substantially similar to the original, the copyright may be infringed. The court rejected the defendant's argument that elements like a rapid-edit style and use of close-ups are unprotectable ideas or concepts. Instead, the court held that the expressive aspects of an audiovisual work include the unique combination of individual artistic choices such as montage style, camera angle, framing, lighting, and overall tone. These elements are the 'expression' of the underlying idea (e.g., using a celebrity spokesperson) and are therefore protected by copyright. The court applied the Eighth Circuit's two-step test for substantial similarity, finding first that the 'idea' of both commercials was similar (using Deborah Shelton in a 30-second ad). Second, applying the intrinsic test, the court determined that a reasonable person would find the 'total concept and feel' of the two series of commercials to be substantially similar, concluding that minor differences would be overlooked and their 'aesthetic appeal' would be regarded as the same. Therefore, a genuine issue of material fact exists regarding infringement, making summary judgment for the defendants inappropriate.
Analysis:
This decision is significant for clarifying that copyright protection for audiovisual works like commercials extends beyond literal elements like the script to encompass the work's overall style and aesthetic, or its 'total concept and feel.' It establishes that a combination of otherwise common techniques (like close-ups or rapid editing) can create a unique, protectable expression. This precedent makes it more difficult for competitors to create advertisements that mimic the distinctive style of a successful campaign without risking an infringement claim, thereby protecting the creative and artistic investments made in advertising production. Future cases involving alleged infringement of audiovisual works will likely look to the overall stylistic similarity, not just similarities in plot or dialogue.
