Thursday, July 30, 2015

James Bond Musical Faces Copyright Quandary

Our resident musical theater guru, Dan Tenenbaum, passed along an interesting news item about a musical in the works based on James Bond.  Although I’m having a difficult time picturing the debonair spy breaking out in song when confronting a villain or tap dancing at a roulette table, just imagine the lyrics for a number by Q demonstrating his latest gadget, or a dance number called “shaken, not stirred” performed by Oddjob and all of the Bond women.  But my creative musings were not the reason that Dan called this production to my attention.

The article noted that the official 007 Facebook page questioned the legality of the production claiming that the producers of the musical had not acquired the necessary rights.  Danjaq LLC and Metro-Goldwyn-Mayer Studios Inc., which apparently control the live stage rights to the Bond brand (presumably as licensees of Ian Fleming Publications Ltd, which owns and administers Fleming’s copyright interests), confirmed that they have not licensed any rights for the proposed musical production and stated that their permission is required for the stage production.

The executive producer of the musical claims that they don’t need any permission from the rights holders because the production is to be a “parody.”  So who is right?

The proposed musical is to have an original storyline – not based on any of Ian Fleming’s books or any of the subsequently written Bond novels authorized by the Fleming copyright owners.  But available information suggests that the stage production, entitled James Bond: The Musical, will use Fleming’s characters, including the Fleming names.

It is generally held that unique or distinctive, well-developed characters are protected by copyright.  One need not delve into the legal analysis of this issue to conclude that many of the iconic characters in the Bond novels would qualify–not British spies, government bureaucrats, evil villains or beautiful women, generally, but the specific Fleming-created personages.  (If they are not entitled to copyright protection, what characters would be?)

But even strong character adoption, if used in parody, can constitute fair use under copyright law. 

Broadly speaking, parody covers a work (story, song, poem, film, theatrical presentation, etc.) that makes fun of, imitates or comments on another work, or the subject, author, style or other aspect of the work.  A classic example is the Carol Burnett sketch “Went With the Wind!,” with Carol portraying "Starlet O’Hara", Harvey Korman as "Ratt Butler", Dinah Shore as "Melody" and Vicki Lawrence as "Sissy", in a scene at "Terra" Plantation.

Even if you haven’t read Gone with the Wind or seen the movie, you could appreciate the character parody, but you may not entirely appreciate Carol’s green dress fully equipped with a curtain rod.  Despite the obvious references to the original work, the sketch does not appear to have been the subject of any claims of infringement.  On the other hand, Alice Randall’s book The Wind Done Gone  (the same basic story told from the slaves’ point of view) was the subject of a preliminary injunction by a trial court finding that it likely constituted copyright infringement.  Although the appeals court subsequently held that the book might qualify as commentary parody, the case was settled before a final determination.
The risk with anything such as the proposed staging of James Bond: The Musical is that qualification as parody can’t really be determined until after the work is completed.  It might be capable of analysis based on the book (script) and song lyrics, but the theatrical presentation of the written word could be equally important in judging whether or not the work should be considered parody.  Given the statements of the parties that are acknowledged to possess the live stage rights to Bond, it seems that the musical producers are taking a big gamble.  James Bond would be proud.

[Editor’s note: The editor incorrectly changed the names of the characters in the Carol Burnett sketch in an earlier version of this post.  This has now been corrected.  Our humblest apologies to the author.]

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