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On Friday, a quirky copyright dispute between two actors — Hank Azaria and Craig Bierko — resulted in a judge’s ruling that only one had a viable copyright hold on an ol’ timey baseball announcer character.
Azaria, whose work includes several voices on The Simpsons, filed the lawsuit in November 2012 after premiering a Funny or Die video in 2010 titled Jim Brockmire, a Legend in the Booth. Azaria’s satirical mockumentary centered on Brockmire, a sports announcer who goes berserk during a game telecast after discovering his wife in bed with another man. The video featured testimonials from real-life sports announcers including Dan Patrick, Joe Buck and Rich Eisen. It was was a viral hit, and there’s been some talk of making it into a feature film.
The problem is that Bierko claims to have first voiced the ol’ timey baseball announcer. Faced with a legal threat that his baseball announcer character infringed upon Bierko’s, Azaria went to a California federal court to settle the score.
The court papers detailed how a party trick evolved into an unusual fight over who had authored the character in question.
Azaria said he regularly showed off his announcer voice to friends since 1986. Through his friend Matthew Perry, he was introduced to Bierko in 1990 at a social gathering. Apparently, Bierko had been doing his own version of a baseball announcer for some time. Impressed, Azaria asked Bierko to leave a message on a friend’s answering machine using the voice.
Over the subsequent years, the two actors would “riff” with each other. Then in 1997, Azaria called Bierko to discuss the possibility of using the sports announcer voice for an entertainment project. Bierko said don’t. Azaria didn’t.
Then the Funny or Die video came out, setting off the legal dispute.
In order to qualify for copyright, a work has to be fixed in a tangible medium and be original.
Reviewing the record, U.S. District Judge Gary Feess says the Jim Brockmire character qualifies as such. The judge rules that Azaria has expressed particularized character attributes including Brockmire’s marital relationship, lucky pen, career arc, volatile temper, affinity for specific cultural trivia, plaid jacket, red tie, the rose on his lapel and a classic sign off to his wife. “It is therefore like those character driven movies where audiences watch more for the character – Tarzan, Superman, Sherlock Holmes, or James Bond – than the story,” writes the judge. “For these reasons, the Court finds that Jim Brockmire is sufficiently distinct to warrant copyright protection.”
Bierko isn’t so lucky.
“By contrast, the depiction of Bierko’s Sports Announcer Character is extremely vague,” continues the judge. “Defendant has offered no description of him other than that he is ‘a white, male baseball announcer,’ who expresses himself in a ‘uniquely American and arguably musical’ fashion.”
The judge says those characteristics wouldn’t distinguish Bierko’s character from any actual baseball announcer sitting in a booth on a given game day. The judge also says that Bierko’s attempt to fix it in a tangible medium — those old audio recordings — didn’t reveal any of the character’s attributes. “Accordingly, the Court finds that Sports Announcer Character, at least as he currently exists, is not copyrightable,” writes Judge Feess.
Bierko also attempted to claim that he and Azaria had an implied contract as allegedly evidenced by the 1997 discussion where Azaria was told he couldn’t use the character. But the judge says that Bierko presented no evidence he disclosed his announcer voice in 1990 “for sale,” and no evidence that seven years later, there was any disclosure. Thus, Bierko’s contract claim fails.
The judge declines to issue an injunction against Bierko, but the ruling conceivably allows Azaria some peace should he decide to turn Jim Brockmire into a feature film. There’s a saying in legal circles that anyone who blurts out an idea without first making his bargain has no one but himself to blame for the loss of that idea. Perhaps it can be added that actors best be careful about what they show off on the party circuit.
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