Dutch Court Won't Let Dan Aykroyd Stop 'Blues Brothers' Tribute Characters
UPDATED: A judge says that allowing a person exclusive right on a "distinctive style" would be "an intolerable restriction on the creative freedom of an author."
Copyright law won't stop two actors from getting on stage in black suits and dark sunglasses and completing their mission from God.
In a fascinating decision handed down earlier this month by a Hague District Court in the Netherlands, Dan Aykroyd and John Belushi's widow have failed in their attempt to shut down a Blues Brothers tribute show. According to an English translation of the ruling obtained by The Hollywood Reporter, the Dutch justice decided that what Aykroyd and Belushi were wrongfully attempting to do was to claim ownership over a style of dress and posture that had been used by many blues musicians for decades before the two celebrities first performed their famous characters on Saturday Night Live, on four records, and in a 1980 film distributed by Universal Pictures.
What set off the dispute was plans by a European company called Stars in Concert to produce a live production under the name, "I'm a Soul Man -- a tribute to the Blues Brothers." The producer specializes in theatrical homages where impersonators perform music of various music stars. For this particular concert, they engaged the Canadian brothers Geoff and Chris Dahl, who had previously performed a Blues Brothers tribute show in Canada after coming to a license agreement with the company set up by Aykroyd and Belushi.
When Aykroyd and Judith Belushi heard about the planned performance in the Netherlands this past summer, they sent a demand letter to the theaters. Licensing Blues Brothers tributes has been good business for them, and an unauthorized performance threatened their ongoing revenue. But this time, the show's producer refused to cease work on the show.
The dispute was heard by Justice Melanie Loos.
Aykroyd and Belushi attempted a number of arguments to stop the show from continuing.
On copyright grounds, the claimants argued that elements like an advertisement that the performers are "on a mission from God," appearances in the production by actors playing Aretha Franklin, James Brown and Ray Charles, and re-enactment of scenes from the movie were infringements of the movie script. But the justice said it was impossible to assess these copyright claims without knowing more about how the production compared to the script.
Nevertheless, Aykroyd and Belushi also attempted to win on copyright grounds by maintaining that the fictitious characters of Jake and Elwood Blues were protected by copyright -- that any production that broadly used this musical duo of brothers with the same names, with the same attire, with the same "cool reserved pose," with the same repertoire of blues and soul music, and other similar elements, was an infringement.
Justice Loos rejects this assessment.
"The claimants did not contest that the appearance of Jake and Elwood Blues, namely a duo wearing a black suit, with a white shirt, black tie, white socks, black shoes, black sunglasses, black ‘pigskin’ hats and sideburns are similar to the dress style of a number of blues legends form the 1950s, such as Reverend Gary Davis and John Lee Hooker," writes the justice. "The claimants even stated at the hearing that Aykroyd and Belushi were inspired for The Blues Brother by the performers of the so-called hipster style of 'Electric Blues' performers from Chicago."
The justice continues.
"On the basis of these style features that form undeniably an important part of the characters' appearance and which were copied by the claimants form previous blues legends, the claimants cannot claim protection by copyright in these provisional relief proceedings," she writes. "The Dutch Copyright Act does not grant exclusive right to a person working on the basis of his own distinctive style. This judgment is based on the idea that copyright protection of abstract forms such as distinctive style features would entail an intolerable restriction on the creative freedom of an author and would therefore act as a brake on cultural developments."
Aykroyd and Belushi also attempted to argue that the production constituted an infringement of their "portrait rights," which is the Dutch version of what's commonly known in the United States as publicity rights. But the Dutch court refuses to apply their claims so broadly to look-alikes in a ruling that distinguishes the image of an actor from the image of an actor's character.
"The claimants do not invoke in fact the portrait right of Aykroyd and Belushi but of the characters Jake and Elwood Blues," writes the judge.
The ruling isn't a complete loss for Aykroyd and Belushi. The claimants were able to succeed on their trademark claim that the title of the production infringed their "Blues Brothers" mark. But that only means that Stars in Concert has to take out "Blues Brothers" from the title. The justice says it is permissible to refer to the Blues Brothers in promotional literature.
From what we hear, the production has already changed the show's title and will be going forward with it.
Diederik Stols, the attorney who represented the defendants, believes the ruling is a "groundbreaking" one that will set precedent. He notes that previous European courts have protected highly delineated characters like Harry Potter, but notes that this case concerned two celebrities who were originally performing as cover musicians themselves. Stols says the original '50s and '60s blues and soul musicians didn't care that Aykroyd and Belushi were mimicking their style because they were collecting royalties from the performance of their music.
Is it hypocritical for Aykroyd and Belushi to then object to tribute performances from others?
"What does paying 10 percent get these productions?" asks Stols. "The right to put on a black suit?"
Panace Entertainment CEO Eric Gardner, manager of the Blues Brothers brand, emphasizes the trademark victory, the fact that the copyright portion applies only in the Netherlands and also says it is considering an appeal.
"As I have been explaining to unlicensed tribute bands, their agents, and their producers all over the world for a number of years, unlike other iconic musical groups which have spawned countless tribute bands, the Blues Brothers consist of fictional characters and as such are protected under law," says Gardner. "A comparable example is Disney characters -- unlicensed use of the names and/or likenesses of Donald Duck or Mickey Mouse in advertising, or actors recognizably costumed as Donald and Mickey performing publicly onstage, would induce immediate aggressive action from Disney's litigators; Jake & Elwood Blues are no different in that respect from Mickey and Donald."
Below is the full English translation of the "Blues Brothers" ruling: