Cross-posted from the Mister Copyright blog.
Last month, Radiohead released their ninth studio album, A Moon Shaped Pool, after a five-year hiatus from recording. In true Radiohead fashion, the album’s release was preceded by a unique succession of mysterious social media postings, teaser artwork and music videos for the singles Burn the Witch and Daydreaming.
The Burn the Witch video was shot in stop-motion animation and features an alarming narrative in which an outsider is welcomed into a seemingly idyllic village, only later to be burned alive inside of a wicker man structure. While the creators of the video have acknowledged that the story is an allegory for the current migrant crisis in Europe, viewers have noticed something suspicious about the video unrelated to the chilling subject matter.
Burn the Witch uses claymation figures to portray its characters and soon after the video’s debut, viewers began recognizing similarities to Trumptonshire, a stop-motion BBC children’s television series from the 1960s. The Trumptonshire series—which includes Trumpton, Camberwick Green and Chigley—depicts daily life in a small, English country town and features recurring characters such as a mayor, doctor and fireman. As a children’s program, the storylines typically involved simple domestic problems that were always resolved in a friendly manner.
Given Radiohead’s popularity and the anticipation surrounding the release of their new album, it wasn’t long before some of those involved with Trumptonshire were made aware of the Burn the Witch video and voiced their displeasure. William Mollett, the son-in-law of creator Gordon Murray, expressed his disgust with the unsettling video and hinted at future legal action for what he believes is a copyright violation.
Radiohead should have sought our consent as we consider this a tarnishing of the brand. It is not something we would have authorized. We consider that there is a breach of copyright and we are deciding what to do next.
While the creators of cheery Trumptonshire may not appreciate an association with the dark Radiohead video, at first glance it’s not a case of clear-cut copyright infringement. The creators of Trumptonshire certainly can’t claim copyright in using claymation characters to express an idea, and the trope of an idyllic small village with a mayor, doctor and fireman would also not be protectable. These elements would be considered scènes à faire, or “scenes that must be done,” in that they are obligatory to a certain genre and one author or creator can’t exclude others from using them.
Where it gets tricky, especially for the Burn the Witch video, is that fictional characters, even if obligatory to a certain genre, can become copyrightable the more distinctly they are expressed. Think of famous literary characters like Sherlock Holmes or James Bond. An eccentric sleuth character or intrepid British spy can’t be copyrighted, as they are too broad to exclude others from employing them in separate creative works. But give the detective a hunting cap and pipe, or the spy a Walther PPK and martini—shaken, not stirred—and now you have characters with distinctive traits, worthy of copyright protection.
A significant case discussing the protectability of fictional characters involved Steven Spielberg’s iconic 1982 film E.T. the Extra-Terrestrial. After the film had become a major box-office hit and financial success, Universal sued a toy maker that was producing and selling dolls that closely resembled the titular alien character. Though the defendant toy company tried to claim that an alien character was not worthy of copyright protection, the court pointed to several distinct features of the E.T. character, which were also featured in the defendant’s doll.
The doll features the oddly shaped head, elongated neck, squat torso, long thin arms, and hunched-over posture of “E.T.”. The defendants’ doll has the distinctive shape and posture of “E.T.” as well as “E.T.”’s disproportionately large head, flat face, wide mouth, pug nose, knobby forehead, and large blue eyes.
A closer look at the Burn the Witch villagers reveals distinct and definite similarities to the inhabitants of Trumptonshire, validating the copyright claims of the Trumptonshire creators. For instance, the mayor of Trumptonshire is depicted as a mustachioed man wearing a tri-corned cap and medallion and is accompanied by a butler-like servant in jacket and tie. While the mayor in Burn the Witch sports a slightly different hat and long sideburns instead of a mustache, the similarities are undeniable.
(Trumptonshire pictured on the left, Burn the Witch on the right)
It’s possible that defenders of the music video would argue that the work is a parody and immune from infringement claims under the fair use doctrine. But contrary to popular belief, not all parodies automatically trigger fair use, and in this case, the Burn the Witch video would not qualify as a parody.
According to the Supreme Court, a parody “is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” But the Radiohead video isn’t commenting on Trumptonshire so much as using the Trumptonshire world and characters to comment on and criticize something else, which would classify it as a satire, not a parody. While satire may still be found to be non-infringing, the Supreme Court warns that satires are not as likely to merit a finding of fair use, especially when using a substantial amount of the original work.
Viewing the two works in succession, it’s difficult to deny a similar semblance. Even if Burn the Witch does not appropriate specific characters, the total concept and feel of the Radiohead video is substantially similar to Trumptonshire. A total concept and feel test refers to a subjective assessment of one work considered alongside another and whether both an expert and ordinary person would find them substantially similar.
In 1977, Sid & Marty Krofft Television Productions Inc. v. McDonald’s Corp. set the standard for total concept and feel by introducing a two-part extrinsic and intrinsic test for determining substantial similarity. The case involved a copyright infringement claim by a team of puppeteers and television producers against McDonald’s for their “McDonaldland” advertisements. The 9th Circuit evaluated similarity extrinsically by employing an expert to determine certain parallels between the two works.
Such criteria include the type of artwork involved, the materials used, the subject matter, and the setting for the subject. Since it is an extrinsic test, analytic dissection and expert testimony are appropriate. Moreover, this question may often be decided as a matter of law.
The intrinsic test relies on the response of an “ordinary reasonable person” to determine whether there were similarities in the expression of the works, a test that could be completed by a jury. In the Krofft case, the court found that both tests satisfied the similarity analysis, even with the defendants offering a list of differences between the two.
Using the two-part test established by Krofft, the Radiohead video would likely be found substantially similar to Trumptonshire and therefore infringing. Burn the Witch uses the same claymation-style stop-motion animation and features similar characters and settings as Trumptonshire, all factors that weigh in favor of extrinsic substantial similarity. And while the intrinsic test is subjective and may vary from one ordinary reasonable person to the next, it’s not hard to imagine a jury finding the two works substantially similar.
Radiohead has always been on the cutting edge of music technology, and front-man Thom Yorke has been an outspoken critic of a music industry that fails to protect the property rights of artists as their music is routinely stolen on sites like YouTube and the Pirate Bay. And so it’s surprising that they would not ensure that their collaborators had secured permission to use the Trumptonshire characters, given the similarities between the two works. Although the United Kingdom has similar exceptions to copyright law—known as fair dealing—as the United States, the laws are narrower and would likely favor the Trumptonshire creators if a copyright infringement suit is brought. As highly influential band that champions artists’ rights, Radiohead should take better care to practice what they preach.