1 June 2021 – I was recently corralled (see what I did there?) to join a European copyright “quotationism” case as a media advisor (subject matter expert in some circles) due to my film production work. Over the past few years, the practice of including in films references to other films or characters, whether explicit or often concealed (so called “Easter Eggs”) has grown. It is a way for directors to pay a tribute to the most iconic characters or to the milestones of the film history. Is this practice – referred to as “quotationism” – lawful without the consent of the owner of the rights in the films and character used?
Quentin Tarantino with his movie Pulp Fiction in 1994 is considered to have raised it to an art form with a movie that best represents his well known aesthetics, made or hidden references, quotationism and extended culture.
Nor is it restricted to film. An early example of quotationism in the novel, for example, is James Joyce’s A Portrait of the Artist as a Young Man. This novel is filled with quotes from poems, verses, prayers, etc. In fact the quotations are so numerous they take over the text. Seamus Deane, who edited all of Joyce’s work for the Penguin Press Joyce series, has said the ratio is ten quotations to a dozen pages.
For any of my readers who have undertaken advisor/subject matter expert work you know that just doing the research yields nuggets and I found the following doozy in the Italian courts. I’ve included case and statute cites for my copyright readers.
The Court of Rome, riding the dusty trails of the Wild West, recently decided on a copyright infringement dispute between two famous Western movies, yet deeply different for period and genre. The gunslingers of this judicial duel were “A Fistful of Dollars” and “Rango”.
“A Fistful of Dollars” (1964) is the first chapter of the Dollars Trilogy, which also includes “For a Few Dollars More” (1965) and “The Good, the Bad and the Ugly” (1966), the cult Italian film series directed by Sergio Leone and unanimously considered the masterpiece of the “Spaghetti Western” genre. All three films focus on the antihero character of the “Man with No Name” played by a young Clint Eastwood, smoking a cigar and wearing the same Poncho and the same cowboy hat in all the films of the trilogy. [In a film production Master Class at the Cannes Film Festival about four years ago, Eastwood and a few of the production staff from the Dollars Trilogy noted it was Eastwood who decided on his attire and the cigar – bringing the hat, poncho, etc. over from the U.S. – as well as the long pauses between sentences, points also noted in a biography on Leone. It was Eastwood’s first opportunity to actually provide input on a film he was in].
“Rango” (2011) is a computer-animated Western comedy film directed by Gore Verbinski and winner of the Best Animated Feature at the 84th Academy Awards. Rango is a pet chameleon who fancies himself an actor. Accidentally winding up in the town of Dirt (called Dust in the Italian version), a lawless outpost in the Wild West populated by the desert’s most wily and whimsical creatures, Rango becomes the local sheriff. Though at first Rango only role-plays, a series of thrilling situations and outrageous encounters force him to become a real hero. Rango is a “film within a film,” containing a number of brilliant references to Western and other films.
In particular, in a pivotal scene, Rango meets the “Spirit of the West” a metacinema character appearing as an elderly Clint Eastwood, smoking a cigar and dressing as the Man with No Name from the Dollars Trilogy, who encourages the chameleon to dig deep to find what he is looking for, because “No man can walk out of his own story”. Watch the scene here. The golf cart, basket full of Oscars and antenna are priceless – all references to Eastwood.
The producers of the first movie of the trilogy “A Fistful of Dollars” brought an action before the Court of Rome against the Italian distributors of Rango, claiming that the character of the Spirit of the West infringed copyright in the character from the Man with No Name.
The Decision
The Court of Rome, with a brilliant decision that shows a genuine passion for the Seventh Art, dismissed the claims, on the basis of the following arguments:
a) The two films are totally different in regard to their context (the first is “dramatic and developed on a growing narrative tension”, the second is “satirical and semi-serious … seemingly intended mainly for children”);
b) Reference is clearly made not to the character of the Man with No Name, but rather to the actor Clint Eastwood “in light not only of the evident physical, vocal and attitude similarity between the Spirit of the West and the actor Clint Eastwood, but also the fact that the actor is portrayed as an old and white-haired man, that is how he appears to the public today” (in Rango, the Spirit of the West is not an young gunslinger as the character of the Trilogy, but an elderly gentleman who drives a golf caddy, with a golf bag full of Academy Awards);
c) The Spirit of the West plays a “temporally limited role lasting not even two minutes” that has the only purpose “of paying a clear tribute to the main actor of the spaghetti western saga and to his director Sergio Leone”. In this regard, the decision refers expressly to the U.S. fair use doctrine, “which assesses whether there is copyright infringement or not also by the extent of the use of the allegedly plagiarized work, since it is not possible to assume the existence of a “commercially harmless” plagiarism”;
d) In any case, according to Italian case law (see “Gabibbo”, “Tex Willer” and “Pink Panther”; copyright readers can find the links), in order to be protected by copyright as a creative work, a character “must be original and immediately recognizable even if the same character is or is placed in a different context”, and therefore it must show a “semantic gap” (“scarto semantico”) compared to the “previous archetypes”;
e) The Man with No Name does not show such semantic gap, because it represents “the stereotype of the negative, ambiguous, double-dealing, foreign, outlaw hero” that “dates back to the beginnings of occidental literature with the Odyssey” and already known “in the specific movie sector”. The decision refers to the fact that “A Fistful of Dollars” is a reinterpretation in a western way of Akira Kurosawa’s films Rōnin (1960) and Yōjinbō (1961), recalling that, at that time, the producers of the Kurosawa films brought an action against the current plaintiff and the lawsuit was settled out-of-court;
f) Finally, according to the Court, the case could not fall under the exception of parody, in light of the ECJ decision in the Deckmyn v Vandersteen case, because “all contents relating to the cinematographic works referred to in “Rango”, while being immediately recognizable, do not assume a desecrating or in any case “reworking” function with purposes different from those of the original work”.
Analysis
The “quotationism” issue – referred to in the judgment as “Citazionismo” – plays a significant role.
Article 5.3 d) of the Infosoc Directive provides for a specific exception for “quotations for purposes such as criticism or review, provided that they relate to a work or other subject-matter which has already been lawfully made available to the public, that, unless this turns out to be impossible, the source, including the author’s name, is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose”.
The Italian legislator did not implement this provision, because art. 70 of Italian Copyright Law already provides for a specific exception allowing the “abridgment, quotation or reproduction of fragments or parts of a work and their communication to the public”, though only for “the purpose of criticism or discussion” and in any case “provided that such acts do not conflict with the commercial exploitation of the work”. The reference in a film to another film or film’s character such as in Rango has not a clear purpose of “criticism or “discussion” and is potentially in competition with the exploitation of the original work.
The Italian judge filled this gap, referring expressly to the U.S. fair use doctrine and in particular to the factor of the “amount and substantiality of the portion used in relation to the copyrighted work as a whole” (see 17 U.S. Code § 107) that, according the decision, is a general principle of copyright that is also found in Italian Law. The reference can appear unusual and also questionable, but it is not the first time that an Italian court refers expressly to the doctrine of US fair use in deciding a dispute under Italian law (see also Court of Milan, July 13, 2011, Foundation Alberto et Annette Giacometti v Fondazione Prada in a case of “transformative use”).
All of this may, perhaps, be seen as a reaction against the excessive rigidity of the exceptions provided for by Italian Copyright Law. But rigidity is not always compatible with modern expressions of artistic freedom.