THIS WEEK IN CULTURE + THE CULTURE BUSINESS
News Briefing: The ‘Stereophonic’ copyright case
Record producer Ken Caillat has sued writer David Adjmi, who wrote the award winning Broadway play ‘Stereophonic’. Caillat alleges that the play is an unapproved adaptation of his memoir about working on the recording of Fleetwood Mac’s ‘Rumours’ album.
In this TW News Briefing, we explain what this legal dispute is all about and the copyright questions it raises.
Record producer Ken Caillat has filed a lawsuit in the US in which he claims that David Adjmi‘s Tony Award winning Broadway play ‘Stereophonic’ is basically an unapproved adaptation of his 2012 memoir, which describes his experiences engineering the Fleetwood Mac album ‘Rumours’.
Adjmi denies that his play is based on the book. However, the case puts the spotlight on the adaptation control provided by copyright, the principle of fair use, and the tricky challenge of drawing the line between inspiration and infringement.
ABOUT THE DISPUTE
‘Stereophonic’ centres on a fictional rock band as they struggle to make a new album in the recording studio in the mid-1970s. It opened last year off-Broadway before moving to the John Golden Theatre where it continues to be performed.
Ken Caillat is a record producer and sound engineer who, in 2012, published a memoir called ‘Making Rumours’, co-written with Steve Stiefel, which documents his work engineering Fleetwood Mac’s 1977 album ‘Rumours’.
A number of journalists covering ‘Stereophonic’ have noted the parallels between Fleetwood Mac and the fictional band in the play, which includes men and women, Britains and Americans, and two couples.
And, in some cases, connections have specifically been made between the story told in the play and that recounted in ‘Making Rumours’.
When asked about all that in media interviews, Adjmi is adamant that any similarities between his play and Caillat’s memoir are coincidental.
He told the New Yorker, “When writing ‘Stereophonic’ I drew from multiple sources – including autobiographical details from my own life – to create a deeply personal work of fiction”. He then added, “any similarities to Ken Caillat’s excellent book are unintentional”.
And in a Deadline interview he said, “I know why people are saying, ‘Oh it’s the Fleetwood Mac story’, but I don’t know Fleetwood Mac. I never met them. You know what I mean? There is no beginning and end to a Fleetwood Mac story. You know, this play is its own invention”.
However, in his lawsuit, Caillat says Adjmi’s claims that ‘Stereophonic’ is not based on ‘Making Rumours’ are simply not credible. He argues that ‘Stereophonic’ “copies the heart and soul of ‘Making Rumours’ and is substantially similar”.
The memoir “depicts Mr Caillat’s career and relationship with Fleetwood Mac during the making of the ‘Rumours’ album, by introducing songs and key events in the order that Mr Caillat experienced during the making of the album”, the lawsuit goes on, adding, ‘Stereophonic’ “uncannily duplicates this precise arc”.
To that end, Caillat alleges that ‘Stereophonic’ is an unapproved adaptation of ‘Making Rumours’, and therefore Adjmi is liable for copyright infringement.
THE ADAPTATION CONTROL
Copyright is a legal principle that gives creative people control over the outputs of their creativity. Copyright owners have control over their work in a number of different ways. There is the reproduction control – the actual right to copy – but there are other controls too.
That includes the adaptation control. Only the copyright owner has the automatic right to adapt their work. Providing examples where this control applies, UK copyright law says that a copyright owner has control over the “translation of the work”, or where “a dramatic work is converted into a non-dramatic work” or “a non-dramatic work is converted into a dramatic work”.
Therefore, if a playwright adapts a book into a play, they need permission from whoever controls the copyright in the book. Which means they need to negotiate a licensing deal with the copyright owner.
The play will, in itself, be protected by copyright as a derivative work of the book. The owner of the copyright in the book might want to own or co-own the copyright in the play, and that would need to be agreed in any licensing deal.
FAIR USE
Although copyright owners have control over their work, there are some restrictions on that control.
In most countries, copyright law provides specific copyright exceptions, scenarios where third parties can make use of copyright protected works without getting permission. These include things like critical analysis and parody. However, there will usually be some limitations on the exceptions.
Under US law, there is a related concept called fair use. If use of a copyright protected work is fair use, permission is not needed from the copyright owner.
There are criteria used in American courts to try to define fair use. Generally, if a use is covered by a copyright exception in Europe, it is probably fair use under the US system. However, arguably fair use goes further than copyright exceptions.
This can be relevant when it comes to writing plays that are based on existing works. As Adjmi himself knows, because this isn’t the first play he has written which resulted in a copyright claim.
His play ‘3C’ satirised the 1970s sitcom ‘Three’s Company’, prompting a cease and desist letter from the production firm that owns the rights in the TV series.
However, Adjmi managed to secure a declaratory judgment from the US courts that said the play deconstructed rather than adapted the TV show, and therefore its use of aspects of ‘Three’s Company’ was fair use under American law.
Caillat references that dispute in his lawsuit before insisting that fair use does not apply this time round. “The case of ‘Stereophonic’ is very different”, the lawsuit says, “because the show is not a parody or other fair use of ‘Making Rumours’”.
INSPIRATION V INFRINGEMENT
As it currently stands in this dispute, Adjmi isn’t using the fair use defence, he is simply insisting that ‘Stereophonic’ is not based on ‘Making Rumours’. We await to see how that argument is formally presented when the playwright responds to Caillat’s lawsuit.
If it can be proven that Adjmi read ‘Making Rumours’ before writing ‘Stereophonic’, and was therefore at least inspired by Caillat’s book, we may end up returning to a familiar debate: when does inspiration become infringement?
Copyright doesn’t protect facts and ideas, it protects the expression of facts and ideas. All creators are inspired by works they have consumed and enjoyed in the past, and they will often borrow facts and ideas from other copyright protected works, sometimes deliberately and sometimes subconsciously.
That borrowing is part of the creative process and entirely legal. However, at what point do we say that a creator hasn’t just borrowed facts and ideas from an earlier work, but they have copied the expression of those facts and ideas, so that inspiration becomes copyright infringement?
In the UK, a key case centred on this debate involved Dan Brown, who was sued by the writers of a non-fiction book that influenced ‘The Da Vinci Code’. The writers of the earlier book, which was called ‘The Holy Blood And The Holy Grail’, sued for copyright infringement.
In was undisputed that Brown had used ideas in ‘The Holy Blood And The Holy Grail’ in ‘The Da Vinci Code’. However, the judge ruled that the earlier book had simply provided general background material and therefore there was not a case for copyright infringement. Basically, Brown had taken facts and ideas from the earlier work, but had not copied the expression of those facts and ideas.
Although there are parallels with that dispute, the specific allegations in the ‘Stereophonic’ case are different, and this is being fought out in the US courts. However, should the dispute get to trial, there could be another interesting inspiration v infringement debate.
FURTHER RESOURCES
TW Culture now offers a training course on copyright for creative businesses which can be delivered in-house for your team – either online or in-person. A two hour and half-day version is available. Click here for more information.