If you’ve been watching NFL or college football this fall, you’ve probably seen GEICO’s new commercial contrasting poor decisions made by horror film characters with the good decision of insuring through GEICO. (It’s good, but the Ickey Woods one is sensational.) If you weren’t watching football, you might have also seen “HELL NO: The Sensible Horror Film,” a short film co-created by comedian John Freiler. In that film, which has garnered six million views on YouTube, the horror film characters make good decisions. Both the commercial and Freiler’s short are parodies of horror films, using elements common to horror films, and both use the would-be murderer’s reaction to the characters’ decisions as a punch line.
Freiler made some news recently by claiming that GEICO had copied his film. According to Freiler:
GEICO ripped not only our premise, but the TONE, the FEEL of our film. The editing, the cinematography, the music…they even swiped our idea of having the psychokiller’s confused reaction be the funny button that ends the short.
I find it completely hard to believe that GEICO’s ad’s similarity to ours is a coincidence.
A claim of copyright infringement requires a showing that the defendant has, without authorization, copied something protected by a valid copyright. There is no doubt that Freiler’s film is a creative work subject to copyright protection, but not all copying is copyright infringement. To infringe, a defendant must misappropriate the protected elements of a creative work. So the question here is really whether copyright even protects what Freiler says was “ripped off.”
Unlike patent law, copyright does not protect ideas. Instead, it protects how an idea is expressed. For example, you can probably guess the name of the fairy tale about a beautiful girl with long hair that is trapped in a tower by a mean, ugly witch. No, not Rapunzel. The Brothers Grimms’ “Rapunzel” was apparently adopted from Giambattista Basile’s “Petrosinella.” And more recently, the same idea was adapted by Disney in “Tangled.” Because the idea for this fairy tale is not protected by copyright, you’re free to write your own version, but to avoid infringing the copyrighted way that Disney told its version of the story, your script should not include a hero named Flynn Rider, a talking pet chameleon, or anything similar to the songs that may have been drilling into your subcortex for months.
Freiler’s claimed premise of his film—characters making unexpected decisions in a horror film—is an unprotectable idea. The same goes for his “idea of having the psychokiller’s confused reaction be the funny button.” While the precise way he executed these ideas is protected by copyright, the ideas themselves are not.
But what about Freiler’s more specific allegation that GEICO copied the “tone and feel” of the film in editing, cinematography and music? That’s different from the underlying idea, right?
Yes and no. There are certain elements that are necessary for a horror film parody to work. Horror films typically feature an ominous atmosphere, low lighting, and include glimpses of threatening villains, close-ups of a screaming actor, and scary music in the background. Without using such elements, parodies like Freiler’s movie, the GEICO commercial, or the movie Scream simply wouldn’t work. Under the copyright doctrine of scènes à faire (a French phrase literally translated as “scenes for action” but meaning “scenes that are required”), such requisite common elements are not protectable. Thus, just as copyright doesn’t allow Freiler to protect the idea of his film, it doesn’t give him exclusive rights to those facets of its cinematography or music. That means GEICO, or anyone else for that matter, is free to use these common elements in a satire of the horror genre.
Unless he could show that GEICO copied protected elements of his film, Freiler would have a hard time establishing copyright infringement; which may also be the reason why Freiler seems to acknowledge that his infringement claims would not hold up in court. Still, he got some headlines and some publicity out of the dispute. And perhaps that was his idea all along.
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