December 18, 2013 12:08pm PT by Eriq Gardner
In Defense of Shia LaBeouf (Analysis)
It isn't easy sticking up for Shia LaBeouf. Nevertheless, in a country grounded upon the presumption of innocence, he deserves at least one voice willing to provide a counterbalance to those who would like to hang him for plagiarism. Since no one else in the media has thus far stood up, we'll assign ourselves the role of devil's advocate.
This week, Buzzfeed reported that LaBeouf's new short film HowardCantour.com, which debuted at the Cannes Film Festival in 2012 and was just posted online, is "almost a direct adaptation" of Justin M. Damiano, a 2007 comic about a film critic by Daniel Clowes. The evidence seems damning, including nearly identical dialogue and similarity in characters and plot sequences.
"I was shocked, to say the least, when I saw that he took the script and even many of the visuals from a very personal story I did six or seven years ago and passed it off as his own work," said Clowes, now reported to be exploring legal options.
Since then, condemnation has come quick and hard. LaBeouf has been subject to all sorts of speculation for his behavior, from "genuine cluelessness" to some "psychological problem" lurking in his soul. It hasn't helped that LaBeouf has seemingly stuck his foot in his mouth in attempts to deal with the PR nightmare.
"Copying isn't particularly creative work. Being inspired by someone else's idea to produce something new and different IS creative work," LaBeouf tweeted. "In my excitement and naiveté as an amateur filmmaker, I got lost in the creative process and neglected to follow proper accreditation."
Most commentators weren't impressed with the half-apology. Some argued that it was cribbed from an entry on Yahoo Answers.
That said, in mustering these words, LaBeouf looked to distinguish inspiration from misappropriation, and in attempting to explain his intent to create something "new and different" from something that came before, he seemed to be making the case for his transformative "fair use" of Clowes' work.
Some will say that what LaBeouf did was copying -- straight and thorough. But the actor didn't produce a graphic novel as Clowes did. He created a short film. At worst, what he made was an illegal derivative. That doesn't absolve him, as authors get the right to control derivatives, but the boundary between lawful and unlawful appropriations isn't always cut and dried.
To take one example, there's the ongoing lawsuit brought by photographer Patrick Cariou against artist Richard Prince. The defendant is being sued for copyright infringement, having appropriated copyrighted photos from a 2000 book, Yes Rasta, which featured Rastafarians in Jamaica, for his own work. In April, the 2nd Circuit Court of Appeals ruled that 25 of Prince's 30 works in dispute were fair use, and remanded to a lower court the determination on the rest. Here's one example of a Cariou photograph and a Prince piece still being judged:
"Prince did little more than paint blue lozenges over the subject's eyes and mouth, and paste a picture of a guitar over the subject's body," wrote a 2nd Circuit judge. "We cannot say for sure whether Graduation constitutes fair use."
Now back at a federal court, the trial judge has invited all sorts of expert opinions from others. Here's a passage from an amicus brief submitted in late October by the Andy Warhol Foundation and Robert Rauschenberg Foundation:
"A follow-on work’s uniqueness of meaning, and thus its transformative purpose and character, are not always easily determined upon initial inspection and comparison with the work allegedly infringed. … It is a long-held tenet among art historians, curators and many other cultural commentators that adequate assessment of an artwork’s meaning is not limited to what can be seen and felt by the five senses. Rather, one must attempt to form a cognitive understanding as to what the artwork is, including by reference to art history, art theory, and an identification of the relevant audience for the work."
Even accepting this theory doesn't mean that LaBeouf has necessarily made fair use of Clowes' work. It's entirely possible that a judge would look at HowardCantour.com and see a work that added no new purpose and character to Justin M. Damiano. Then again, the context of LaBeouf being a veteran of the film industry and doing a film about a film critic could factor. At very least, a knee-jerk assessment that it isn't fair use is just as rash as those who took a look at the recent controversy over a toy company's use of The Beastie Boys' "Girls" and decided that it was fair use. Further investigation is warranted.
If Clowes does sue, many might assume he'd be the favorite in court. But copyright infringement cases are notoriously tough for plaintiffs to prevail. First, generic ideas aren't protected. Only expression is. Yes, dialogue counts, but not standard literary devices nor scenes a faire involving indispensable characters or settings. And judges look hard for differences from one work to the next.
We'll leave off with an example.
In 2007, LaBeouf starred in a film called Disturbia, which almost every film critic in America saw as a remake of Alfred Hitchcock's Rear Window. In interviews at the time, LaBeouf admitted it was an "homage." When the rights-holder of Rear Window sued, one publication called it "the most obvious lawsuit ever" while Nikki Finke at Deadline Hollywood said the only mystery was why the lawsuit took so long -- saying it was "a total duh.”
Three years later, the defendants won. The judge found dissimilarities in setting and mood and concluded, "Their similarities derive entirely from unprotectable elements, and the total look and feel of the works is so distinct that no reasonable trier of fact could find the works substantially similar within the meaning of copyright law."