Chris Rock's Good Hair Gets Tangled in Suit -- One Lawyer's Thoughts
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.
The fear of not fitting someone's ideal of beauty should not be a reason for people to continually alter who they are. As Atlanta housewife NeNe told fellow housewife Kim Zolciak, "You do you."
Zorianna Kit: Chris Rock's Good Hair Documentary: Something to Talk About
When one black, male journalist wanted to know why Rock didn't choose to travel to Africa and show the origins of black women and their "natural" hair" Rock shot back: "That's Soledad O'Brien's job."
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Judge Dale Fischer -- not surprisingly -- denied Kimbell's request for an injunction today and allowed the movie to be released nation-wide. http://news.yahoo.com/s/nm/20091020/film_nm/us_rock
"impliedly"
Is that really a word?
As someone who has read literally hundreds of scripts, I can tell you there is really nothing new under the the sun...
These cases come up all the time and in this case -- a documentary -- I can tell you she has no chance of winning this. The very nature of a documentary is that the results are not preordained.
In a copyright infringement suit involving a feature screenplay the defendant has to demonstrate whole passages of dialog lifted, or specific ideas or plot twists transfered...
How do you possibly do that with a doc, unless his voice-over is word for word the same?
Give it up, Regina...you can't copyright an idea that affects millions of people.
go read a script...
As predicted:
Judge Refuses To Block Chris Rock Documentary 'Good Hair'
Read more at: http://www.huffingtonpost.com/2009/10/19/judge-refuses-to-block-ch_n_326489.html
PS---I continue to be amazed that we've been in this country for over 300 years, and so many fundamental aspects of our culture continue to be a mystery to white people.
"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."
Chad, did you consult with any of the black folks on staff before penning this line? EVERY black woman has hair issues. There is nothing unique about the theme of Good Hair. It is the sort of thing black folks discuss regularly and worry over constantly.
The poster is correct that no one can copyright an idea, esp. one that is so commonly shared and discussed in the black community. This topic comes up so often and is so pervasive throughout the black community that it is hard to believe that Ms. Kimball actually believes that her film was so original that Mr. Rock had to "steal" the idea behind it. It seems strange that Ms. Kimball is making such charges now, just when the film is releasing rather than when the film was being discussed and made well over a year ago. If she was concerned, couldn't she have raised her issues then? What timing to get her own filmed some publicity and *earn* something from a well-timed lawsuit. What next, Spike Lee sues Ms. Kimball as he interprets that she *stole* the idea of dealing with the "good hair" issue from his 1988 film 'School Daze'?
There are a lot of ppl who think he stole it, that's why the movie was #14 in the box office last week and made just over a million bucks. I think he stole it, but he can't steal my movie money. He should've given her credit and some compensation, great pr and hand up for another filmmaker maker. She has a great site. I ordered her movie and lots of ppl are doing the same. Chris' buffoonery is stale as h e l l!
oH PLEASE, how can you steal something that is talked about for years in the black community, he don't owe her crap.
I agree, except I think crap is all he owes her.
I think he stole it...........
That's a conclusive verdict. Now we need your conclusive evidence, please?
Desperate silly little lawsuit by a money grubbing small time director looking to get paid off of someone else's success.
She doesn't own the topic and she's hoping that ignorance of Black culture by some White jury will net her some Chris Rock money.
Boy, is she in for a rude awakening.
Alex Haley (of the book and TV miniseries "Roots" fame) doesn't own the topic of slavery, so when other movies like Sankofa and Amistad were made years later, he couldn't sue them because of the commonalities between the his and their topics.
Likewise he couldn't sue them just because they've seen the Roots TV series.
CNN could do a special on Black women and Black beauty products/hair care and the internalized Eurocentric beauty ideals and self-hatred experienced by Black women for centuries and then what?
Regina Kimbell expects them to cut her in for a piece?
The topic is not new, the experience is not unique and the story is all too common. She needs to quietly dismiss this suit and make no more noise before she 's bankrupted by Chris Rock suing counter-suing her.
Morhpy hath spoken, yo.
The subject itself is not entirely unique or unheard of. Sarah Breedlove Walker was one of the first (if not the first) women to become a millionaire on her own - she developed hair care products and cosmetics for black women in the early 1900s. Spike Lee had a great take on it in "School Daze."
I do feel for her, though. What rotten luck to put all that effort into a project and then find someone like Chris Rock is doing something on the same subject. But, I wonder if she would have ever had the chance to have the sort of distribution he will have. I think she will have trouble claiming that he's stealing business from her - his name brings an audience that she would not have had.
Whoopie can sue her, since she done a bit on hair in her one woman show some years back. If Kimbell seen or heard that and the same logic of her suit is applied, Kimbell is done for, except she got no money to pay Whoopie. Dang!
Well,
People steal ideas from black women all the time, because they can, and know they'll get away with it,
because basically, unless you're someone like Oprah, as a black woman in America, you have no social power at all, except that which you can provide others.
Oh, no, you dident. :)
Kimbell will lose.
It's just a shakedown for money. She's hoping they'll pay her to go away.
I hope they don't, she loses and is stuck with court costs.
She has a tough case to prove. Frankly, I don't think she can do it. I'm not a lawyer, I look at it like a juror, and I've read 30 short stories about "good hair" in the last 20 years. I've seen books on the subject, it is something that has been discussed forever in the black community. The WWII example is a good one. But let's try something else. Anyone ever seen Outbreak? The writers of the non fiction book couldn't close on a deal with the studio so the hired a new writer, did research on the initial non fiction case and wrote their own movie based on that incident. Dan Brown, who stole the idea for the the Divinci Code from a fringe academic book took their entire premise of the holy grail and wrote a novel around it and won his case in court. Fair use of non fiction work allows for disparate research on non fiction topics with out remuneration.
J
You can't copyright an idea.
Bram Stoker doesn't own vampires. He only owns Dracula. (Or I should say his estate does)
That's why Anne Rice is a millionaire. She doesn't own vampires either. But she does own Lestat.
There's Cirque du Freak. And Laurel K. Hamilton's Anita Blake series.
And now there's Twilight.
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