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Chad Fitzgerald

Chad Fitzgerald

Posted: October 16, 2009 11:05 AM

Chris Rock's Good Hair Gets Tangled in Suit -- One Lawyer's Thoughts

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A woman named Regina Kimbell sued comedian and actor Chris Rock, HBO Films, and others in federal court in Los Angeles last week, claiming that Rock's new documentary Good Hair copies her 2006 documentary My Nappy Roots. Kimbell seeks $5 million in damages and an injunction preventing the defendants from distributing and showing Good Hair without Kimbell's consent and from "designating anything other than My Nappy Roots as the inspiration for Good Hair."

Kimbell alleges that she completed My Nappy Roots in early 2006 and screened the film at colleges and film festivals throughout the U.S. She claims she was inspired to create the film by her daughter's issues regarding her hair and African-American hair culture. Curiously, this is the same inspiration Rock has articulated for his film.

Kimbell says that Rock's assistant invited her to screen My Nappy Roots for Rock at Paramount Studios in June 2007. Kimbell agreed, but, according to the complaint, "asked [Rock's assistant] if he would sign a non-disclosure agreement before the screening." She claims that the assistant "told her that he would." After the screening, which Rock attended with his assistant and two writers (who were ultimately credited on Rock's film), Rock complimented Kimbell and told her, according to the complaint, "that he has a 'little film' he's doing for HBO about Black hair and he didn't know what to do." Kimbell was "stunned and felt violated." She then alleges that Rock's assistant refused to sign the non-disclosure agreement.

Kimbell claims that Good Hair copies My Nappy Roots because the two films allegedly share many "striking similarities." The complaint makes claims for copyright infringement and breach of implied contract, among others. These claims, although legally distinct, will turn on the same facts -- whether Rock "used" Kimbell's film in making Good Hair.

Even without direct evidence of copying, Kimbell may be able to show "use" by showing (1) Rock's access to her work and (2) "substantial similarity" between material elements of the two works. There is no disputing access here: Kimbell screened her documentary for Rock, at his request. The question is whether Good Hair is so "substantially similar" to My Nappy Roots that Kimbell can legally prove that Rock "used" her ideas without paying her.

She will have a steep uphill battle. California courts are notoriously defendant-friendly in this realm, and recent decisions have only solidified California's staunch support of the established Hollywood entertainment industry over individuals who claim to have had their ideas "stolen." And little wonder -- even in today's economy, the entertainment industry still accounts for a substantial amount of California's revenue, and the state wants to protect that revenue stream.

But beyond the economic and policy factors favoring the defendant in these cases, the plaintiff's legal obstacles are also steep. Without having seen either film, I feel comfortable saying her copyright claim is almost certainly doomed. The most fundamental tenet of copyright law is that ideas are free and cannot be copyrighted. Rather, copyright protects how ideas are expressed, not the ideas themselves. For example, just because Steven Spielberg makes a movie about World War II, or Michael Moore makes a documentary on the evils of capitalism (or Kimbell makes a documentary about Black hair), does not mean that they have cornered the market on films about World War II or capitalism (or Black hair) and no one else may ever make another movie about those subjects. It just means that I can't make a film that too closely copies the expression contained in those films -- the precise ways in which their plots, themes, dialogue, moods, settings, pace, sequence, characters, etc. are communicated. Think of the artistic elements that make Saving Private Ryan what it alone is, rather than just another movie about World War II. That is what copyright law protects.

This may seem like common sense, but its application by the courts is an inexact art, not a science. How much "borrowing" is too much? When does it cross the lines from research to homage to outright copying? Copyright infringement is very hard to prove, and the "striking similarities" between My Nappy Roots and Good Hair set forth in Kimbell's complaint are probably not striking enough to show copyright infringement. Even according to the allegations in Kimbell's complaint, it looks like Rock made his own movie, even though he saw Kimbell's.

Kimbell's breach of implied contract claim -- that she and Rock impliedly agreed that Rock would not use her movie without paying her -- is more tricky than her copyright claim, but still likely to be a loser. Like her copyright claim, this claim turns on whether Rock "used" My Nappy Roots in making Good Hair, and that question turns on whether there is "substantial similarity" between the two films. Having the same topic is not enough; the two films must share "material elements." Courts have defined "material elements" to include a work's "dramatic core," plot points, theme, characters, and character motivation. Clearly, this rubric is better applied to works of fiction, and its application to documentaries in this case makes things more interesting. What would a court mean by the "dramatic core" of a documentary? There are just not that many ways you can make a documentary about hair, and preventing one person from monopolizing an entire genre is precisely why we have copyright law.

The court will hear oral argument on Kimbell's request for a preliminary injunction on Monday 19. I wouldn't bet on the court issuing an injunction. Kimbell has to show both that she is likely to succeed in her case (unlikely) and that her harm from Good Hair being distributed outweighs the harm Rock and the other defendants would suffer if an injunction is granted (highly unlikely). Good Hair is currently in theaters and will be released nationwide later this month. The court will be extremely reluctant to force Good Hair's distributor, defendant Roadside Attractions, to recall every print of the movie around the country. An injunction will almost certainly not be granted, and the case will proceed through litigation. The only sure thing is, if this case goes up on appeal, it could also make for an interesting new development in this unsettled but often litigated area of law.