All the Stars and Constellations

A music video for the new Black Panther film features scenes of striking similarity to artist Lina Iris Viktor’s Constellations series. Is this inspiration or infringement?

Marvel Studios’ new movie Black Panther features the first black superhero to appear in mainstream comics. It has received widespread acclaim and press, not least because of its positive portrayal of Africans and African Americans as powerful, heroic characters. In its review, The New York Times exclaims that the film “is a vivid re-imagination of something black Americans have cherished for centuries — Africa as a dream of our wholeness, greatness and self-realisation.”

To promote the film and its soundtrack, American rapper and songwriter Kendrick Lamar, together with American R&B singer SZA, recently released a music video entitled “All the Stars.” However, the producers of the music video are now accused of stealing from African artists.

British-Liberian artist Lina Iris Viktor, who currently resides in New York, has garnered praise for her series Constellations. The work is characterised by unique patterning, using what Viktor considers a “purist colour palate” of only black and 24-karat gold. Viktor found out about the music video from friends, who had called her to say they had seen Constellations featured in the video. The alleged infringement begins three minutes into the video, and lasts for about 20 seconds.

a screen shot of the “All the Stars” music video

Viktor’s lawyer Christopher Robinson sent a letter to Lamar’s mentor and label head, Anthony Tiffith of Top Dawg Entertainment. In the letter, as seen and reported by The New York Times, the use of Viktor’s artworks in the “All the Stars” video constitutes “willful and egregious” copyright infringement. In particular, the video “incorporates not just the immediately-identifiable and unique look” of Viktor’s work, but also “many of the specific copyrightable elements in the Constellations paintings.”

Viktor was previously contacted on two separate occasions in respect of using her work in association with Black Panther. In the first instance, a set decorator asked Viktor directly if he could feature Constellations in the film itself. On the second occasion, a public relations firm contacted the Mariane Ibrahim Gallery in Seattle, which represents Viktor. The PR firm wanted Viktor to provide Marvel Studios and Disney with artworks to promote Black Panther. In both instances, Viktor declined the opportunity to be associated with the film, for reasons apparently related to financial terms and exclusivity.

Lina Iris Viktor, pictured here with her artwork for House & Leisure Magazine

Constellations and “All the Stars” call into question the fine line between infringement and inspiration. Style and general colour schemes are not protected by copyright law, regardless of the form in which it is illustrated or embodied (17 USC Section 102(b)).

Segments of Kendrick’s music video clearly appear to have been inspired by Viktor’s artwork. There are several striking commonalities with the patterns and colour schemes used, and certain actors’ poses mimic Viktor’s portraits. One could even argue that the name “All the Stars” echoes Viktor’s Constellations title.

Inspiration is a common and important part of most creative processes. The issue of concern is whether the source of inspiration was transformed to the extent that Lamar’s video was itself “original,” or instead “derived” from Viktor’s work. To answer this question, the two artworks must be compared to determine “substantially similarity.” The legal test for substantial similarity is a subjective, factual analysis called the ordinary observer test, as developed in Peter Pan Fabrics, Inc. v. Martin Weiner Corp., (2d Cir. 1960):

The Court will analyse if the ordinary observer, unless he set out to detect the disparities between the works, would be inclined to overlook them and regard the aesthetic appeal of the two works as the same. This means looking at the overall visual effect — the total concept and feel — regardless of the individual elements that may have been changed, added or even removed.

Left, an image from the video for “All the Stars” (Universal Music Group); right, the painting “Constellation I” by Viktor (Mariane Ibrahim Gallery).

At present, no official lawsuit has been filed at court. The letter simply asks the “All the Stars” crew to discuss a resolution of Viktor’s claims, “consisting at a minimum of a public apology for the unauthorised use and a license fee.” In her interview with The New York Times, Viktor explained that these allegations are “an ethical issue” and not about monetary compensation. She noted that the film’s creators focus on black empowerment and African excellence, but at the same time appear to support what she considers cultural appropriation. Lamar, Top Dawg, Marvel Studios and Disney have not yet responded to the allegations.

In an attempt to settle this allegation as quickly as possible, and indeed – to protect the narrative of promoting African and African American artists in general – Black Panther producers may simply choose to give Viktor an apology and a considerable licence fee. Given that the film is expected to smash box office records, and the Black Panther soundtrack has likewise become a hit with audiences, coming up with compensation is unlikely to be too much of a problem.

Merger at the Movies

British cinema chain Cineworld will buy American chain Regal Entertainment for £2.7 ($3.6) billion

The merger announcement comes at a time of tough competition amongst theatre chains as they struggle with long-term declines in audiences and changes in consumer behaviour.

Exclusive release windows continue to shorten.  Introduction of the Video Home System (VHS) technology in the late 1970’s posed a significant threat to the traditional studio-to-cinema distribution model. Studios and cinemas created the “release window” system in the 1980’s as a strategy to keep different film formats from competing with each other. Only after a film was shown exclusively in cinemas for a particular “window” of time would it then be released for home rental or purchase. In 1999, the window had an average of 27 weeks. Today, the average is just 15 weeks, with smaller films often having release windows of just a few weeks or even days. This poses a challenge to cinemas, as they have a shorter amount of time to exploit their monopoly on the film before it becomes available on DVD or on-demand.

Netflix: from disruptor to key industry player.  The 20 year-old company that started as a simple DVD home delivery service just announced plans to release 80 original films next year. With nearly 110 million subscribers around the world, has doubled its audience base since 2014. Other streaming platforms including Amazon, Hulu and YouTube have also made significant dents in Hollywood’s business model.

While Regal has not disclosed why it selling, there are many plausible benefits to consider.  Firstly, Regal and Cineworld would likely reduce expenses across a variety of departments, as redundancies between the two – for example in marketing or finance – would be streamlined. The two chains would also benefit from joined resources, including that of knowledgeable staff, pre-existing cinemas, and the leveraging of existing networks. Cineworld would also gain access to American customers by acquiring Regal, without the start-up costs traditionally involved in venturing into new jurisdictions.

photo Doran Hannes (500px)

Cyber security gets Hollywood makeover

Hacking is a major issue for many industries – but Hollywood is an especially tempting target. The new Entertainment Security Operations Center in Los Angeles hopes to provide a secure system for studios to control their valuable creative content.

HBO, Sony Pictures, and Netflix have all been hacked in major security breaches. In addition to embarrassing information being made public and loss of consumer confidence, infiltration can cost a film or television company big bucks. According to a Carnegie Mellon University study, films leaked online before official release can lose nearly 20% of their box office revenue. Furthermore, paid subscriptions for Netflix or HBO become less appealing to viewers if they can simply watch their favourite shows elsewhere for free.

Why is Hollywood so poorly equipped to safeguard itself from data breaches? Outsourcing may be partially to blame. Special effects, musical scores, set engineering, and technicians are often provided by independent contractors and freelancers. While workers could be brought in-house, doing so would be expensive and limit flexibility when sourcing the best talent. Unfortunately, many of these small firms and individuals simply lack the resources to defend against sophisticated attacks. As a result, the hundreds or even thousands of people working on a project’s creation and distribution become security risks.

Film workers’ rights to be restored as New Zealand announces repeal of controversial “Hobbit Law”

Has New Zealand been too friendly towards Hollywood, at the expense of its own workforce? New Zealand’s incoming Labour Government promises to restore certain employment protections for film cast and crew, by repealling the controversial “Hobbit Law” within the next 100 days.

New Zealand is famous for being film-friendly. Gorgeous landscapes provide dramatic settings not far from the city comforts, and generous financial incentives are available in the form of government grants. Since the 1990s in particular, the country’s film and television industry has participated in many large, complex international productions: such films include The Hobbit and Lord of the Rings franchises, The Chronicles of Narnia, the 2005 King Kong remake, Avatar, District 9, The Lovely Bones, and – a personal favourite of mine – The Piano (pictured above). 

Earlier this year, Statistics NZ announced that the country’s screen industry revenue had increased to $3.3 billion in 2016, with film production revenue doubling to more than $1 billion. In addition to direct revenues, film and television content also promotes and enhances New Zealand’s “national brand,” with many tourists visiting the country specifically because of what they’ve seen on screen.

But has New Zealand been too friendly towards Hollywood, at the expense of its own workforce? New Zealand’s so-called “Hobbit Law” came into force in 2010 as a direct result of actors on Peter Jackson’s film The Hobbit threatening industrial action. Warner Brothers’ Studio suggested it would retaliate by relocating the US $500m production elsewhere, with Jackson mentioning the possibility of filming in Eastern Europe instead. To keep The Hobbit in New Zealand, Parliament passed the Employment Relations (Film Production Work) Amendment Bill 2010 to limit screen industry workers’ rights.

The Copyright Between Oceans?

Imagine you’re an author trying to get your screenplay made into a film, but despite giving Miramax Studios and Working Title copies of your script, you have no luck. Ten years later, you discover the theatrical trailer for an upcoming movie starring Michael Fassbinder, Alicia Vikander, and Rachel Weiss. Your heart sinks as you realise that your story has been stolen. What do you do? If you’re Joseph Nobile, you call a lawyer and sue Hollywood for copyright infringement.

In 2012, Margot Watts (writing as M.L. Stedman) published The Light Between Oceans, a novel about a lighthouse keeper and his wife, and their desperate longing for a child. Set primarily in 1920s Australia, Tom and Isabel find an infant washed ashore in a lifeboat after a storm, together with the corpse of the baby’s father. The novel explores the psychological and moral consequences of the couple’s choice to raise the baby as their own.

GDPR Spotlight on media platforms

Personal Data has been Hollywood’s rising star over the last few years. But will the introduction of Europe’s new General Data Protection Regulations steal the spotlight?

I had a bit of a migraine this weekend, so I spent the better part of the last two days on the couch watching Narcos and a few period costume dramas on Netflix. As I scrolled through the recommendations deciding what to watch, I smiled to myself thinking of how confusing my behaviours must appear to the algorithms used by Netflix. My tastes vary from watching FBI agents in 1970s Columbia, to Miss Elinor Dashwood in rural Georgian England.

Me Before You is apparently a 95% match to my preferences, despite being a film I have no desire to see. On the other hand, Blackfish, the whale documentary I’ve seen three times, is only a 54% match. Of course, Netflix only knows what my online behaviour reflects. And while it may not be perfect, when my behaviour is combined with my personal data, Netflix recommendations are fairly accurate most of the time. The advancement in behavioural analytics is big business in the world of media consumption – and it’s only getting bigger.

Questioning the General: parallels to Soviet media control?

Earlier this month, Representative Frederica Wilson of Florida reported that President Trump made insensitive, off piste comments over the phone to the widow of a soldier recently killed in Niger. According to Wilson, Trump told Myeshia Johnson that her husband “knew what he signed up for, but I guess it still hurt.” Trump flatly denied such comments. President Trump’s Chief of Staff, retired Marine Corps General John Kelly, rushed to Trump’s defense. Kelly called Congresswoman Wilson an “empty barrel,” and noted he was “stunned” over alleged comments she made “grandstanding about her own actions in Congress” at a building dedication ceremony honouring slain FBI agents.