Dali, Film, and Exclusivity

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

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3 Responses

  1. Bruce Boyden says:

    It’s a funny phenomenon, certainly. Other examples are the 2 or 3 Alexander pics (I lost count), the 3 Christopher Columbus movies, the 2 Wyatt Earp/Tombstone movies, and the 2 comet/asteroid hits the Earth movies.

    But I’m not sure what it tells us about exclusivity. Obviously no one has an exclusive right to tell a story about Christopher Columbus. And the two comet/asteroid movies were completely different in plot and tone. So were “Wyatt Earp” and “Tombstone.” Any argument that copyright’s justification is based on a need to protect exclusivity at such a high level of generality is a non-starter.

  2. Pete Aldous says:

    You seem to be saying that producers don’t need exclusivity to justify their investment in movies. That argument is misguided because it confuses exclusive control over an idea with exclusive control over the expression of that idea. A filmed biography of Salvador Dali is the idea that is being copied here. Each producer is willing to accept that they can’t control ideas at the idea level under the current law, but they still require exclusive control over their expression of that idea.

    This situation, with three simultaneous Dali movies, actually strengthens the argument for stronger copyright rather than weakening it. As you are fond of pointing out, in Hollywood “nobody knows anything.” There are three Dali biopics because no one knows beforehand which of the three concepts will make money. Hopefully one will be profitable, and will justify the investment the studios made in the unsuccessful films they bankrolled this year.

    If there was less copyright protection there wouldn’t be an incentive to produce any Dali films. The risk of spending millions of dollars on a film that will probably fail at the box office is scary enough. If producers were afraid that the profitability of their few successes would be reduced they wouldn’t invest at all.

    Your post does raise another issue, however, that of derivative works. Because the events that made up Dali’s life are facts they are not copyrightable. Anyone can make a movie about Dali based on those facts. Dali’s artwork, on the other hand, is copyrightable and is protected by copyright.

    Any movie producer who makes a Dali biography that incorporates his artwork will have to compensate Dali’s estate for use of any of his paintings in their film. It is highly unlikely that Dali considered this income when deciding whether he should spend time painting. The possibility of a payout was too remote.

    Dali’s incentives are different than the Hollywood studios. Derivative works are much more important to Hollywood, where the costs are so high, than they are to Dali, who only needed paint and canvas. Unfortunately there’s no easy way to distinguish the two situations from the law’s perspective.

  3. Max Buten says:

    I’m not the author, I’m the photographer.