This item came across the California News Service. I haven't seen it on the Internet yet, so I apologize for not providing any link. What follows is my own summary of the newswire account -
In Los Angeles, U.S. District Court Judge Terry Hatcher threw out a lawsuit against Jennifer Lopez by a woman who claimed that Lopez needed permission to do an homage to ``Flashdance'' in a music video.
The order granting Lopez's motion to dismiss the lawsuit came on March 23.
The lawsuit was filed by a Canadian named Maureen Marder (and her attorney Robert Helfing). She says the 1983 movie "Flashdance" was based on her life and alleged that J.Lo's recent ``I'm Glad'' video featured ``elements of
characterization'' from the movie's lead character.
Marder was a construction worker and exotic dancer who aspired to formal
dance training when she met Thomas Hedley. Hedley received partial screenwriting credit for the movie.
She originally accepted $2,300 for helping to inspire the film, allegedly without realizing she would be the basis for the main character.
My only question is -
why did they have to wait for a motion to dismiss? Shouldn't have this been thrown out even earlier for "failure to state an actionable claim"? I would hope that J-Lo's lawyers at least attempted to make that motion. If they did, then shame on the judge for not granting it.
The fact that Jennifer Lopez is famous and has a lot of money doesn't mean that she should be the target for frivolous lawsuits. I only hope that she was also awarded a big fat dose of attorneys fees for this one...
If you read between the lines, it seems clear that Marder is just upset that she didn't make a bunch of money off the film in the first place and she is simply lashing out in any direction she can in order to make an extra dime.
Let's leave aside the fact that the First Amendment should trump a so-called "right of publicity" in instances like this (I assume that the lawsuit claim was based on that notion, or a similar argument invoking some bastardization of intellectual property rights), Marder doesn't even claim that Lopez's dancing is based on her - only "characterizations" in the movie which could have been the writers' own independent creations.
Dance moves should not be protected by intellectual property or any offshoot theories in any regards.
My sympathies J-Lo!
Posted by Justin Levine at March 30, 2004 06:37 PM | TrackBackPredators always attack the weak and the sick. Check the plaintiff's situation before you attack her too.
With all due respect, I believe the validity of a lawsuit rests on the face of the complaint itself. The plaintiff's "situation" is completely irrelevant.
I have no doubt that Ms. Marder has much fewer financial resources compared to Jennifer Lopez. That doesn't change the fact that she is not entitled to money just because Jennifer Lopez performes a few dance moves as an homage to a film that Ms. Marder may have losely inspired.
As far as your claim of "Predators always attack[ing] the weak and the sick" goes, that is simply not always the case.
It is certainly true that large corporations or wealthy plaintiffs will sue defendants with few resources, knowing that the mere prospect of expensive litigation will force them to bend to the plaintiff's will.
But it is equally true that poor plaintiff's will often target wealthy defendents with completely frivolous claims simply in the off chance that they can shake them down for money in order to make them go away.
Any intellectually honest person in the legal profession will tell you that it goes both ways.
In this particular case, Jennifer Lopez is clearly being targeted unfairly - simply by virtue of the fact that she is wealthy.
Posted by: Justin Levine at April 3, 2004 06:42 PM (Permalink)Perhaps you didn't notice that Lopez was in trouble with Paramount over this same music video issue earlier last year? And that some sort of settlement was made? Or maybe you simply *forgot* to mention this.... Perhaps this woman has an equal copyright claim... do you know all the details? If not, then be careful that you aren't talking through your hat. (You're obviously out of your legal league here.)
Why do you feel entitled to slam the poor plaintiff with all kinds of libelous assertions and yet cheer on Lopez who precipitated all these lawsuits by appropriating artistic property that was not her own?
And, I was referring the predator label to you. The fact is that the plaintiff is physically disabled--and has been apparently since Flashdance was made. Why do you feel it is necessary to assist Lopez by spinning yarns on her behalf? I'm sure her publicity team can manage on their own.
It's just not very attractive to cheer on a wealthy, healthy celebrity who has won an unexplained court decision over a plaintiff who is poor and sick. Shame on you.
anonymous
Posted by: anonymous at April 4, 2004 06:48 AM (Permalink)The level of silliness on some of the posted comments on blogs never ceases to amaze me. Yours is one such example, but it won't stop me from responding to it.
You are right about one thing, Paramount did sue Jennifer Lopez over the music video for copyright infringement over "Flashdance". Their lawsuit was completely frivoulous as well, but the parties settled because each of them want to eventually work together (Paramount wants to cast J-Lo on their films). It's a pity that the lawsuit wasn't challenged, but that is standard operating procedure in the film industry - file a frivolous lawsuit and have the other party settle because they believe its cheaper in the long run to settle rather than go through expensive litigation. I think its a ridiculous business custom, but it doesn't make Marder's lawsuit valid. Yes, I did forget to mention it because Paramounts lawsuit was in the news some time ago and it wasn't relevent to Ms. Marder's claim (other than the fact that it may have the initial inspiration for her to take a one-in-a-million shot at making a cheap buck off of Lopez).
I know enough details about the case by virtue of the fact that I have read the news accounts of it. Lets review the undisputed facts shall we?...
1. Marder was once a blue-collar worker who aspired to be a professional dancer, and her story loosely inspired the film "Flashdance".
2. "Flashdance" was never meant to be a biography about Marder, it just used the broad idea of another blue-collar worker stuggling against the odds to rise out of her job to pursue a dream of dancing.
3. The film was made using a choreographer other than Marder who developed original dance moves. Marder had nothing to do with the dance sequences in the film.
4. Dance moves are not copyrightable in any instance since there is no "fixation" which copyright law requires. You can make a film of a dance and copyright it of course. But the copyright would apply to the film itself and not the underlying dance moves.
To further illustrate this point, if I were to film myself waving my arms up and down while standing on one leg and sticking my tongue out, I would not be able to charge people money for doing the same thing in their own films or during a live performance. (That is why Paramounts lawsuit was also frivolous.)
5. Lopez was sued for using dance moves and costumes that were evocative of "Flashdance". No connection to Marder herself was ever seen in the music video nor was any connection alleged in the complaint (once again, Marder had nothing to do with the creation of the dance moves or costumes in the film).
6. Marder's lawsuit was dismissed by a judge on "summary judgement" - meaning that no facts were in dispute about the case and that Jennifer Lopez deserved to win the suit as a matter of law.
Because of the above facts that nobody has disputed, I characterized Marder's lawsuit as frivolous. I don't need to know "all the details" as you put it when all of the salient details have already been reported. Yet you ridiculously claim that I "slammed" her with "all kinds of libellous assertions".
If there were other relevent facts to the case, then I am confident that either someone in the press would have reported it, or at the very least Ms. Marder would not have lost a summary judgement motion.
So the answer is "No" - this woman does not have an "equal copyright claim", especially when you consider that Paramount never had a valid one to begin with.
Despite your assertions, I am not "out of my legal league here". Not that one needs any "qualifications" to comment on this, or recognize the frivolousness of Marder's claim - but since you seem to be one of these people that substitutes pure speculation and comparing "qualifications" for real arguments, I will tell you that intellectual property law happens to be one of my specialties in my law practice (as well as libel law).
It is you who are out of your league in this instance, not because of any special knowledge of the law that is required, but rather because you substitute blinding emotion for rational arguments. You feel sympathy for poor disabled woman. And as a result, you feel that she should then be allowed to abuse the legal system against a rich and famous woman simply because she is rich in famous.
It is you who should be ashamed.
If you feel my comment make me a "preditor", I take it that you also feel the judge in the case is also a "preditor" for ruling against this woman? Why do you suppose he did that if she had a valid claim??
It does not surprise me that you chose to post under an "anonymous" name, since I doubt that you would be willing to defend your ridiculous ramblings in person. That is why I always use my real name in my posts. It helps keeps me honest.
But hey, I invite anyone on this site to read my initial post and these comments and decide for yourself if your "arguments" have any merit.
I suspect that you are merely a bitter person who feels that the American courts should be used as some perverse form of wealth redistribution, rather than an institution of justice.
Posted by: Justin Levine at April 5, 2004 04:39 AM (Permalink)But you sound like someone who cannot stand any objections to your view...poor baby. (Everyone is frivolous or bitter but you?) Despite your obstinate stance on the copyrightability of choreography, it is not accurate. Choreography is eminently copyrightable via fixing in a tangible form whether recording on tape or in dance notation. Beyond this, there are domestic common-law protections for live performance pieces not fixed in any tangible form as well as protocols for the same in international treaties and agreements. You should do your homework.
And, as for feeling sympathy for a disabled dancer or blue-collar worker who is making an attempt to control the unauthorized use of her copyrighted material, I don't see that as being antagonistic to the legal process. The law is not supposed to be inhuman--only impartial: laws were made by people for people.
anonymous (...strikes again! Hey! You started it with your prejudiced blog!)
I am certainly able to stand objections to my point of view - as long as they are based on reason and stated without unjustified inevctives. I am entirely willing to let people compare our comments and decide for themselves who is the frivoulous and bitter one here.
"Despite your obstinate stance on the copyrightability of choreography, it is not accurate. Choreography is eminently copyrightable via fixing in a tangible form whether recording on tape or in dance notation. "
I clearly stated that position myself in point # 4 of my previous post - so it seems entirely accurate to those who read carefully. Once again a film or recording of choreography is copyrightable. Choreography without fixation is not. Simple enough.
As far as "domestic common law protections for live performance pieces" go, you are simply wrong. Only two state courts have suggested such protections in dicta (NY & VA), and no case has ever upheld a common law copyright under state law since the passage of the 1976 Act, even if California Civil code 980 states that they should . If I am wrong on this, I will gladly admit so. But you are going to have to cite me the case to prove otherwise. If California ever did enforce its own statute in this regard, it would likely be struck down under a First Amendment claim since allowing its enforcement would be akin to allowing private entities to charge others for free expression.
And incidentally, if Marder is asserting a state common law copyright claim, why did she bring her case in federal court?
Likewise, you will need to cite the specific international treaty that has been upheld by U.S. federal courts. If the U.S. conforms to internation treatise on copyright, then why don't we recognize so-called "moral rights" to works?
I can think of only one exception that explicitly dissavows the fixation requirement - that of live music performances. Paerhaps that is what you are referring to? Section 1101 of the WTO agreement? That is the single exception to the fixation requirement since big business music labels wanted to shutdown bootleged recordings at concerts. But this exception was specifically and narrowly aimed at music - not choreography.
But all of this is somewhat academic since even you must admit that Marder was not the one who created the choreography of "Flashdance" to begin with....Thus, I still don't understand the basis for her claim.
Perhaps it would be simpler to put the question to you directly - On what basis do you believe that Marder has a claim here? Is it simply because she is poor and in a wheelchair and that Jennifer Lopez is not??
Even if dance moves were copyrightable and no fair-use denfense was involved, by what basis do you believe Marder has a claim of authorship in this instance?
I noticed that you didn't respond to my question as to why you supposed the judge granted Jennifer Lopez a summary judgement in this case. Would you mind responding to that please? It might help clarify the debate.
If pointing out frivolous claims in an evenhanded manner makes me "prejudiced", so be it.
Posted by: Justin Levine at April 5, 2004 01:01 PM (Permalink)To further clarify my arugment - it comes down to 2 questions:
1. Are the dance moves in Jennifer Lopez's video copyrightable?
2. If so, can Marder claim to be the "author" of whatever might be protected?
As to question # 1, many scholars, as well as I, would argue that the moves themselves are not copyrightable - only the fixed expression of the moves. For a more detailed debate of this admittedly nuanced question see http://www.csulb.edu/~jvancamp/copyrigh.html (authored by someone who clearly favors copyright protection for such works but does a good job detailing the philosophical and legal problems surrounding protections for such works).
Question # 2 is more straightforward. Nobody has suggested any evidence whatsoever that Marder is the "author" of copyrightable elements that J-Lo "misappropriated". At least one federal judge seems to have agreed with that assessment.
Hence, the justifiable conclusion that the lawsuit was frivolous.
Posted by: Justin Levine at April 5, 2004 02:01 PM (Permalink)You need to do your homework before you accuse Maureen Marder of sueing J-Lo because she is rich and famous. Jennifer Lopez stole the entire theme of her "I'm Glad" music video from the movie "flashdance". Maureen Marder was tricked into signing an agreement which landed her being paid only 2,300 dollars for a movie that was about her life. Jennifer Lopes owes something to Ms. Marder. Ms. Marder deserves this, she isn't sueing J-Lo just because she is rich and famous. Stop having sympathy for this woman you know nothing about.
Posted by: anonymous at June 12, 2004 04:32 PM (Permalink)Hmmm...yet another "anonymous" poster with a separate e-mail address spouting off comments that are completely inane.
If I need to do "homework" on this topic, what facts or sources do I need to look at, pray tell?
Jennifer Lopez did not "steal" anything. She paid homage to a movie that she admired.
Saying that she "stole" something from Ms. Marder is like saying Steve Martin "stole" from Bugsby Berkely when he made the film "Pennies From Heaven".
This goes beyond a respectful disagreement I'm afraid. Your comments are nothing short of being just plain stupid.
Which of these facts are wrong? -
1. Flashdance is not a biographical film about Ms. Marder, but used a broadly defined experience of hers for inspiration (i.e., a working class woman using her dreams of dancing to lift herself out of her economic and social situation).
2. Ms. Marder had no hand in creating that film beyond serving as a broad inspiration for it.
I am not familiar with any facts to suggest that Marder was "tricked" into signing anything.
But let's assume for a moment that she was - how is that Jennifer Lopez's fault exactly?? Marder's dispute would be with the producer of the film that got her to sign the contract - not Lopez, who has no privity to the agreement whatsoever.
I don't need to know anything about Jennifer Lopez to understand that she was unjustly sued in this instance and is thus deserving of sympathy regarding this issue (you will find that I have much less sympathy for her when it comes to the issue of marriage).
Your denial that she "isn't sueing J-Lo just because she is rich and famous" is simply laughable on its face.
I guess the most relevent question to you would be this: If your position is correct, then why did the judge throw out Marder's lawsuit? Do you feel that the judge is simply star-struck with J-Lo such that he would ignore all concepts of law and justice in order to unjustly punish a poor disabled woman?
What other cases are there where judges upheld decisions similar to Ms. Marder's claims?
When you can give me a credible answer to that question, I'll be happy to reconsider my opinion.
Good luck....
I know it has been sort of awhile since this originally happened, and even awhile since the last post, but I don't have cable or read the paper so I'm a little behind on things sometimes. I've never seen the "I'm Glad" video in my life, so until today, I've known nothing of the video resembling themes from Flashdance. I was however, thoroughly entertained by the heated debate it sparked. I would like to extend my totally unbiased opinion.
I don't think Marder sued Lopez because Lopez was rich and famous. I think she sued because she out of bitterness and resentment. She wanted to be better compensated for her part in the creation of the movie, and she was insulted that something she felt was inspired by her was used without her permission. Frankly, I think she would have sued ANYONE who used what she felt were her themes, J-Lo or not.
Of course, these are just my thoughts and I have never met Marder, so I can't do anything further besides speculate. And neither can you, since it doesn't appear that you have ever met her either, so it's kinda wrong to make assertions about a person whom you have no idea what they're really like.
And to agree with you, Justin, I don't think her being in a wheelchair should have ever been brought up. It's in no way relevant to anything about the real issue. It definitely should not be considered as a reason to award settlement or favor.
I also agree that the heart of Marder's complaint lies most likely with the studios. However, I don't understand how you can say so definitively that the movie was not based on her life, but was a mere loose and broad inspiration for it. With all do respect, no one can really make such a claim besides Marder, and the people who she made the deal with, because they were the only people who were there when the idea was originally created. There isn't any time machine that can whisk us back and allow us to eavesdrop on the transaction and see firsthand what really happened. I visited another website regarding the issue that told a totally different story. According to it, (sorry, I don't remember what site it was), Marder ran into a producer who was so intrigued by her lifestyle he decided to make a movie about it. "It" specifically being her life. Now, I'm not saying that website was right. But I am pointing out there are many sides to the story, so Your point of view isn't necessarily right either. You can't really be so sure when you WEREN'T THERE.
Even if Marder did maliciously sue Lopez in a deliberate plot to get a peice of her riches, I hope you don't think that all people who need a little money are like that. You may not, but it kinda sounded like it. I just hope you have some faith in human kind that we won't all do unethical things for money whenever the opportunity arises and we think we can get away with it. You may have done so unintentionally, but you came across as though you have been financially wronged by someone who srewed you over, and that there may be some residuals left from that.
And I'm no law expert or anything, so maybe I have no right to say this, but I will. In my opinion, Lopez, or anyone for that matter, even if it is a tribute, should ask permission before paying an homage to something they admire by reusing themes from said thing that sparked admiration. And if that isn't already a law, I think it should be. Putting aside specifics on choreography copyright laws, to me it seems it was the theme usage that was the issue. As you said, Marder had nothing to do with the creation of the routines. I don't think Marder was angry because of the use of a few moves she didn't create. She was mad (so I speculate) that themes from her life were used. True, maybe it shouldn't have been Marder who was asked permission, since she doesn't "own" the movie Flashdance, but I think someone should have been asked.
And for the record, I don't think you were attacking a poor disabled woman and I think the whole "shame on you" for that is unnecessary. It didn't really appear you were attacking her because she was disadvantaged, and seemed you overlooked that with an unprejudiced eye. Those people shouldn't have assumed that you had ill intent towards a woman with disabilities.
Thank you for reading and pondering this.