“Let Me Be Frank”: Kevin Spacey gambles with infringement

On Christmas Eve, US actor Kevin Spacey puzzled the whole of Hollywood by producing what may the oddest Christmas video ever released on social media. Take a look (here)!

Spacey, in releasing the video entitled “Let Me Be Frank” on his official YouTube account, appears ‘in character’ by invoking one of his most famous roles: Francis (aka Frank) Underwood from Netflix’s series House of Cards. In this three-minute clip, Kevin Spacey is shot wearing a Christmas apron, speaking to the camera (in the iconic House of Cards’s style), replete with Underwood’s usual mannerisms, tone of voice and (fake) Southern American accent. The irony is that in hitting south of 10 million views on YouTube, Spacey received more views than the House of Cards’s final season.

The controversy of the video

The controversy of the video lies in the ambiguity of Spacey’s lines, which can only be understood with a little bit of context. In October 2017, Spacey suddenly became persona non-grata in the entertainment industry, following the publication in the press of allegations of sexual misconduct made against him. Two weeks later, Spacey was removed from Ridley Scott’s latest film, ‘All the Money in The World’, ten days before its release (see previous post on this here), and Netflix dropped the actor from its award-winning ‘House of Cards’ series.

In viewing the clip, one realizes that its title (“Let Me Be Frank”) is a pun referring to both the first name of the Netflix character as well as the actor’s ongoing legal disputes (the legal proceedings against Spacey are scheduled to begin this month in the United States and in England & Wales).

Copyright infringement for non-literal copying?

House of Cats?

Setting aside any controversy over the video, has Spacey infringed any intellectual property rights by going ‘off script’ and impersonating Frank Underwood without (it seems) Netflix’s blessing?

It is well-nigh impossible to imagine that any Spacey’s video is made of shots or off-cuts taken from the Netflix series (the image and editing quality simply is not there). To put it simply, “Let Me Be Frank” is home-made. The text and its embodiment by Spacey are also new material. So can there be no copyright infringement for literal copying of content produced by Netflix. 

Still, the reference to Frank Underwood, and to the series House of Cards more generally, is undeniable [and presumably intentional]. So what about copyright infringement for non-literal copying?  Let’s turn to what makes us think of ‘House of Cards’ or ‘Frank Underwood’ when we watch the video. 

This Kat lists the following elements: 

• Spacey appears in the same hairstyle as that of Frank Underwood in the first seasons of the Netflix series (later, Spacey’s appearance is ‘aged’ thanks to make-up) [NOT PROTECTED SO NOT INFRINGED: hairstyles do not attract copyright protection when they are as basic as this one]. 
• Spacey speaks with the same accent, tone and pace as that of Frank Underwood throughout the series [NOT PROTECTED SO NOT INFRINGED: accents or styles of performance do not attract copyright protection in themselves]. 
• Spacey stares back at the camera and delivers his monologues speaking directly to the viewers, an iconic technique in the series that was frequently used in House of Cards [NOT PROTECTED SO NOT INFRINGED: A directing or performing technique cannot receive copyright protection in itself]. 
• Spacey’s lines convey the character’s typical ruthlessness and unapologetic sentiment towards past crimes or misbehaviour [NO PROTECTED SO NOT INFRINGED: the facts, ideas or feelings conveyed by words cannot attract copyright protection]. 
• The title “Let Me Be Frank”, as in Frank Underwood [NOT PROTECTED SO NOT INFRINGED: ‘Frank’ as a word is unlikely to attract copyright protection; further ‘Frank’ here could can be the adjective for ‘honest’]. 
• Spacey places a signet ring on his finger, recalling the ring with which the character was buried, which nevertheless manages to resurface mysteriously in the final season of the series [NOT PROTECTED SO NOT INFRINGED: the use of an ordinary object as a prop cannot in itself amount a type of expression protectable by copyright].

K. Spacey as Frank Underwood
in House of Cards (Netflix)

Taken individually, none of these elements that conjures up Frank Underwood in the viewer’s mind fits the definition of original expression protected by copyright.

But infringement for non-literal copying can also be assessed by taking various individual elements collectively to establish similarity between two creative works. Indeed, borrowing the  “total concept and feel” of a work may influence a court in finding for copyright infringement (see  Roth Greeting Cards v. United Card Company, 429 F. 2d 1106 - Court of Appeals, 9th Circuit 1970; for an equivalent precedent in England & Wales, think Temple Island Collections Ltd v New English Teas [2012] EWPCC 1, 12 January 2012, see previous post here and here).

In Roth Greeting Cards, the Court decided that the defendant had infringed the copyright covering the greeting cards of the claimant because “the characters depicted in the art work, the mood they portrayed, the combination of art work conveying a particular mood with a particular message, and the arrangement of the words on the greeting card”,  were substantially similar (at 1110). Applying this to Spacey’s video, perhaps one could argue [though this Kat is not keen to do so] that Spacey’s video borrows too much of the “concept and feel” of Netflix’s House of Cards.

However, this Kat would counter by arguing that, except for the title, the similarities between the video and previous Netflix episodes all stem from the same source: Kevin Spacey (i.e. the actor’s performance). Spacey’s fake accent, delivery, and physical appearance are all elements of his performance that have contributed to building Frank Underwood’s character on screen and in the mind of viewers. These are elements that are unique to Kevin Spacey’s physical appearance and performing style.

These elements of performance were called the ‘embodiment’ of an actor’s performance in the “infamous” copyright decision Garcia v Google (766 F. 3d 929, 934 2014). Added to the script and director’s guidance, this ‘embodiment’ is what brought Frank Underwood to life in the series. Unfortunately for Netflix, in an en banc panel on appeal, the Ninth Circuit ruled that such an ‘embodiment’ is not subject to copyright protection, thereby overturning the 2014 judgment (see, Garcia v Google (786 F. 3d 733, 743-744, 2015)).

Conclusion — [in this Kat’s view] a claim by Netflix for non-literal copying against Spacey’s video would be unlikely to succeed.

Copyright in the character of Frank Underwood?

Socks Clinton,  Former White House Cat

However, there may be an alternative route for Netflix to claim infringement, namely that copyright exists in the character of ‘Frank Underwood’, which Spacey infringed by performing it without prior authorization. This only applies if Netflix owns the right in Frank Underwood’s character (as Kat readers may  know, Netflix’s House of Cards is a US adaptation of an earlier BBC production, which is an adaption of  a novel by Michael Dobbs). 

The law on copyright in characters is still somewhat murky. In principle, characters are not granted protection, but some US courts have recently recognized certain exceptions according to which highly distinctive character, essential to the “story being told”, may be covered by copyright (See, Warner Bros. Pictures, Inc. v. Columbia Broad. Sys., 216 F.2d 945 (1954) 950 ). Indeed, recent cases in the US have leaned towards conferring protection to literary and pictorial characters alike (see for example, DCComics v Towle 802 F.3d 1012 (2015) 1020).

However, this Kat remains of the view that the elements of Underwood’s character that were reproduced in Spacey’s video to invoke the infamous politician were those which he injected (his embodiment) and therefore are unprotectable under copyright law.

“Let Me Be Frank” was fair use?

But what about fair use? Under US statutory law, a court will have to take into account four parameters in assessing fair use. These four elements are:  (1) “the purpose and character of the use” (is the use of a commercial nature or is for non-profit educational purposes?); (2) “the nature of the copyrighted work”; (3) “the amount and substantiality of the portion used in relation to the copyrighted work as a whole”; (4) “the effect of the use upon the potential market for or value of the copyrighted work.” (17 U.S.C. § 107).

The fair use doctrine does not sit well with the recognition of copyright in characters. This is because characters are often classed as ‘micro-works’; they are copyright works within copyright works. A such, the borrowing of a character will often be regarded as substantial, since a character can be a copyright work in itself as opposed to being the insubstantial part of a larger work (like a book or a film). Although Spacey’s video only lasts three minutes, it does conjure the whole of Frank Underwood’s character, potentially falling foul of the third prong of the fair use doctrine. 

That being said, the US Supreme Court explained that liability for copyright infringement could be avoided on the basis of the fair use doctrine even though one of the four parameters outlined above was not met, if the use of the work was particularly transformative (see, Campbell v Acuff-Rose Music, Inc., 510 US 569 (1994)). In Campbell, the US court recognized “that parody, like other comment or criticism, may claim fair use” were all highly transformative uses by nature (at 579).

This doctrine of ‘transformative use’ may just be what Spacey needs to avoid liability for copyright infringement. His performance in “Let Me Be Frank” could be regarded, if not as a form of parody, at least as a form of criticism of the way that he was personally treated by Netflix and other producers following the accusation of sexual misconduct. Alternatively, Spacey’s video could be interpreted as a comment on the fact that Frank Underwood was unceremoniously written off the series by being killed out of the blue.

All things considered, and much like his character on the screen, Spacey would seem to walk a fine line between the permitted and unauthorized.