Thoughts on The Solo movie poster plagiarism accusations?

Here’s a high-level overview of the legal and practical issues (I’ve practiced intellectual property law here in the U.S. since 1998.)

1. Though the work allegedly copied here may have been created outside the U.S., numerous copyright treaties essentially harmonize certain aspects of copyright law around the world so that foreign works are protected under U.S. law (and vice versa). These treaties include the Berne Convention (1989) and the Universal Copyright Convention (1952.) So let’s assume this work is protected from copying under U.S. law, and the artist has a right to sue in the U.S.

2. To prove liability for copyright infringement, you have to prove the “infringer” copied the work. If you don’t have direct evidence of copying (someone saying “I saw Bob copy that other poster”), you can prove copying occurred though circumstantial evidence by demonstrating that (i) the infringer had access to the work (i.e., he could have seen it somewhere) and (ii) the later work is substantially similar to the original work. In that case, the law says, in effect, “you were exposed to the other work, and then you created a work that looks an awful lot like it – we’re going to assume you copied.” That being said, if the “infringer” can show independent creation – “yeah, my work looks similar, but it’s a coincidence- I never saw the other work”, then there is no infringement because there was no proof of copying.

3. In the U.S., copyright infringement is a “strict liability” offense – meaning anyone who makes or distributes an infringing copy is an infringer, even if they did not know the work was infringing and did not intend to infringe. So, while the original artist may be an infringer, Disney would also be an infringer for making and distributing copies (through advertising, sending to theaters) even if it had no reason to know the work was copied.

4. As a practical matter, Disney is not exposed to millions and millions of dollars in damages here. Generally a copyright plaintiff is entitled to two things – (i) the actual damages he suffered from having his work used without permission (i.e., lost sales of his own copyrighted work) – probably fairly minimal here, and (ii) the defendant’s (Disney’s) “profits attributable to the infringement.”

That phrase “attributable to the infringement” is VERY important. If Disney makes $700 million in profit from Solo, that doesn’t mean the artist gets all of that. Rather, he only gets the portion of profits that are attributable to use of his poster. And Disney would (rightly, IMHO) argue that virtually none of the tickets sold for Solo were bought just because people loved the poster. Instead, they will point to the general hunger for SW films, the excitement caused by the trailer, the public’s love of the Han Solo character. That all whittles that $700 million down to some very tiny number of ticket-buyers who said “I only saw that film because of that cool poster, and I probably wouldn’t have seen the film without that poster.”

(If the work was registered in the U.S. Copyright Office (unlikely), then the plaintiff could elect to receive statutory damages of up to $150,000 – but that would mean giving up the right to claim damages and defendant’s profits. And the Copyright Act actually says a judge can choose to award any amount between $100 and $150,000 – so even that is not a sure bet of getting $150,000.)

5. As far as Disney – yes, a settlement is likely even if there is no proof of copying, because it is often cheaper to pay to settle than to fight something. But that settlement will likely be confidential with no admission of liability – “we paid you just to make you go away, not because we did anything wrong – but you agree not to disclose how much we paid you.”

6. Regardless of whether Disney has to pay because of a settlement or due to a finding of liability, it ain’t coming out of their pocket. A standard term in a contract with a third party creator (such as a design agency) is that the third party creator (design firm) will indemnify (pay all damages for) the commissioning party (Disney) if there is a claim that the work is infringing. So Disney will just make a claim for indemnification against the design firm for any amounts for which Disney is on the hook (as well as, likely, for any costs, attorneys fees, etc. that Disney had to spend to deal with this whole mess).

M
 
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I agree with SethS. I don't see how Sony France or the original designer would have standing to bring a lawsuit here. My understanding is that layout design is not copyrightable, and there isn't a trademark issue here either. However, I agree that Disney's marketing team looks bad here.
Disney can now join the pantheon of famous rip-off artists:
From how I've seen it explained, there's a difference between derivative and inspiration (this link was cited). It's being said that these works are clearly derivative... and there is too much that is clearly lifted to be a mere coincidence or inspiration.

The idea isn't all that original - however, once you add the colors and everything... it becomes a rip off of the original design.

It might made LFL/Disney look bad - but, that's to a select audience (99% of the audience won't notice or care) - and most of the blame should fall on the shoulders of the designers (BLT).
 

"Bahous made the claim over the weekend via a Facebook post that was set to public, but was changed to private on Monday morning. The Hollywood Reporter got a screenshot before the page was changed, which shows Solo artwork next to Bahous' album covers."


I find it odd that he set his Facebook statement to private after a few days open to the public. I wonder if he retained legal counsel and they advised him to avoid any further discussion in public for now?
 
His removing or making private his claims could mean many things. His contract with Sony probably means Sony could do whatever they want with the artwork and might means he's not entitled to any compensation.

His use of the word "forgery" might be a translation thing... but, it is an awfully strong accusation. There's little doubt in my mind that his work was used - but forgery probably isn't the right term to use.

I'm glad to see LFL/Disney is looking into it and I'm sure they'll do whatever they can to properly correct the situation.
 
I'm glad to see LFL/Disney is looking into it and I'm sure they'll do whatever they can to properly correct the situation.

That's Not How Disney Works.jpg That's NOT how Disney Works!

:lol
 
Before I worked in film, I worked as a designer. I was the last generation of designers who went to a four year college, learned art history, and were taught to actually use some problem solving and creative combo to cook up designs.

These days, designers are pumped out by certification academies that assume if they can teach you photoshop, you're a designer. I certainly would look to other designs for inspiration and ideas-- and even totally ripped stuff off if I really loved it-- but generally I followed the rule of 2. If you copy the font and the color scheme, have your own layout and elements. If you copy the layout and color, don't use the same fonts. Generally, working with your own assets you'd end up doing something original, or let it lead you to something new.

That's not how the younger generation of designers see it. Not ALL of them mind you-- but the ones who coast certainly do. My GF is an illustrator who is ripped off constantly to the point of having an IP lawyer on retainer. I really don't want to be a "kids today" person, but the generation raised on the internet think that if something is online, it's fair use to copy/resell/bootleg/whatever.

And just to play devil's advocate-- I know people who have worked at BLT. Like most ad agencies that work in media, they work people to the bone. This could have been the result of an entire team of junior designers pitching ideas for days, and at 3AM the day before they had to pitch to the art director, when they were exhausted, burnt out, fearing for their job, and still one comp short to pitch-- maybe they looked at a CD on their desk and said-- I'll just copy that to fill things out.

And oops-- it got picked.

Odds are though, it was a lazy art director who gave the CDs to a JR designer and said "make it like this, no one will know or care." SURELY THERE'S NO OVERLAP BETWEEN STAR WARS AND VINTAGE AFRICAN AMERICAN MUSIC!

This reminds me of that one episode of Mad Men where Don gets drunk and pitches Danny Strong's slogan that Don had shot down hours earlier as weak, and the clients love it.
 

"Bahous made the claim over the weekend via a Facebook post that was set to public, but was changed to private on Monday morning. The Hollywood Reporter got a screenshot before the page was changed, which shows Solo artwork next to Bahous' album covers."


I find it odd that he set his Facebook statement to private after a few days open to the public. I wonder if he retained legal counsel and they advised him to avoid any further discussion in public for now?

As mkstewartesq mentioned, and my gf has had to do this in settlements of IP cases, a settlement would likely require him to cease talking about it publicly.
 
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If only they invested enough in their own product and employed a legitimate artist to make something special that evokes some sense of wonder and expectation like the real Lucasfilm used to do instead of out sourcing some Photoshop technician they wouldnt be in this embarrassing situation. What a joke.
 
If only they invested enough in their own product and employed a legitimate artist to make something special that evokes some sense of wonder and expectation like the real Lucasfilm used to do instead of out sourcing some Photoshop technician they wouldnt be in this embarrassing situation. What a joke.
Exactly! If they can’t get Drew to do it, or if Drew is not interested anymore.... why not hit up one of the other incredible poster artists out there? KramStaar I am looking at you! ;)
 
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Exactly! If they can’t get Drew to do it, or if Drew is not interested anymore.... why not hit up one of the other incredible poster artists out there? @KramStaar I am looking at you! ;)
KramStaar would be an outstanding choice. I`m sure Disney spent more on food and drink at their AGM then they would ever dream of for an enduring and impactfull movie poster.
 
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@KramStaar would be an outstanding choice. I`m sure Disney spent more on food and drink at their AGM then they would ever dream of for an enduring and impactfull movie poster.

Kram Staar (Mark Raats) posted a suspicious photo on Facebook last night. Hmmmmm....
It was a photo of his hand sketching on a piece of paper, which was going off the right side of the photo. You could just barely see what he was sketching.
All you could make out is that it was the Solo film logo. And he commented that he is going on a trip for a while, and then he replied to another comment, that he couldn’t speak about what the sketch means or he would have to kill them. :lol

Fingers crossed that maybe this whole plagairism debacle will have smacked some sense into them and they called Mark in for a meeting about doing a new poster. :)
 
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Kram Staar (Mark Raats) posted a suspicious photo on Facebook last night. Hmmmmm....
It was a photo of his hand sketching on a piece of paper, which was going off the right side of the photo. You could just barely see what he was sketching.
All you could make out is that it was the Solo film logo. And he commented that he is going on a trip for a while, and then he replied to another comment, that he couldn’t speak about what the sketch means or he would have to kill them. :lol

Fingers crossed that maybe this whole plagairism debacle will have smacked some sense into them and they called Mark in for a meeting about doing a new poster. :)

Wow. I would be so happy for him if he was given the opportunity. I dont envy the time frame that terrible leadership decisions have left him with though. Congratulations Moviefreak on your vision, here`s hoping you are given the same opportunity when reality hits and LFL replaces their President.;)
 
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Especially kind gents, thank you very much...

I've worked for Lucasfilm over a period of 26 years and I can honestly say that not only has it been a blast I can also say that George has been very good to me personally. These days as you can imagine its a very different kettle of fish and nothing like when I did the posters for Indy or Star Wars so its a bit more work and lot more people I need to work through to get anything done.
Moviefreak, thanks mate. Yeah, I can't say much at this stage and if things work out there might be something new in the wings..

Thanks again fella's

Kind regards,
MARK
 
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Because no one really cares except the guy who got plagiarized and probably Disney. Although they have so much money even a full on lawsuit would just be pocket-lint to them.

I would have totally forgot if not for this 3 week bump....:rolleyes
 
It looks like later that month they showed off new versions where they just used the illustrations that were initially inside the text.

It also appears that due to the Florida shooting, the focus of the media turned from the plagiarism aspect, to the need to remove the guns from the artwork. That new focus seems to have allowed the discussion to move on and allow everyone to forget the initial controversy.

https://theplaylist.net/solo-star-wars-guns-20180325/
 
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