Science

Gorilla man Dan Simons in video copyright claim

I hope you’ve all seen Dan Simons’ famous and fantastic basketball gorilla video, which in part was the inspiration for the even-more-famous Colour Changing Card Trick from Richard Wiseman (for which Wiseman not only credited Dan, but included a gorilla in the background as a tribute to his friend).

What’s less well-known is that Dan, quite rightly, owns the copyright to the execution of his concept, i.e. you can’t make your own ripoff version of his basketball video.

Which is exactly what British advertising agency WCRS seem to have done. They’ve created an almost identical copy of Dan’s video for client Transport for London, with the tenuous message that if you didn’t spot the gorilla, you might not spot a cyclist on the road. Oops! Sorry Dan, didn’t mean to steal your creativity and use it, entirely uncredited, but the money was reeeally good and we were under pressure to do something cool. No hard feelings, right?

At the time of writing, the website featuring the ripoff version is still live (no I’m not going to link to it, it’ll just encourage them), but the YouTube version has been removed “due to a copyright claim from a third party”. Good. And hopefully this will go all the way and the ad will be pulled entirely. In fact I will only be satisfied when WCRS hand over their fat agency fee to the guy it rightfully belongs to. Yes, I work in marketing, but I can say hand on heart that nothing disgusts me more than agencies stealing not just the ideas, but the actual executions of hardworking artists (or in this case, scientists) to turn a profit. It happens far too frequently and usually with little consequence, but hopefully this time the people who can’t think of their own ideas will get what they deserve.

UPDATE (12 hours later): it seems that Dan has decided against trying to win a legal battle against the British Government (who paid for the ad), but has expressed his unhappiness at their actions, pointing out that he has helped ad agencies for free in the past and would have done so had they bothered to ask.

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25 Comments

  1. Sorry, this is the only topic that pisses me off more than religion. From the US government about what cannot be copyrighted:

    http://www.copyright.gov/circs/circ1.html

    What Is Not Protected by Copyright?

    Several categories of material are generally not eligible for federal copyright protection. These include among others:

    Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

    Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

    Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

    Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

    And:

    Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device.

    Therefore, Dan’s original video is proteceted, as is its script. No one can take Dan’s video and use it in their own projects, without his permission. But the idea that people will not see a gorilla walking through a basketball game if they are focused on something else (or the more generalized idea that people only see what they are paying attention to), is not copyrightable.

    YouTube takes down anything based on any complaint, and this should not be considered as evidence that the claim has any validity whatsoever.

    God, I hate this topic. Why did you have to bring it to Skepchick? I have to deal with this all the time with work. Sigh.

  2. I met Dan several times when I was in graduate school, and he’s generally a great guy. It’s always bothered me, though, that he explicitly copyrighted his gorilla video, which was originally used in a visual attention study published in 1999. Copyrighting the stimulus material seems to me to contradict the openness one generally finds in science. Because of the copyright, I use the original Ulric Neisser “umbrella woman” from the 70’s video to demonstrate the same phenomenon in my psychology classes.

  3. I’m confused.

    So if I take an idea from someone else and do it in pretty much the same way, that’s not copyright infringement even though their idea was in a fixed form of expression (in this case, a video) and I’ve copied the form as well?

    As is my understanding, the “idea” is that people paying attention to some stimuli will not attend to other stimuli, and this can be expressed in many ways (such as the non-copyrighted umbrella video). The “stealing” party seems to have represented the idea of selective attention in the same tangible and fixed way as the copyrighted video, rather than coming up with their own way of demonstrating the idea. So wouldn’t that still fall under copyright?

    I’m no expert, so I’d like to learn. I’d appreciate anyone helping me clear things up. :) Thanks!

  4. OK, here’s the deal:

    You can’t copyright an idea. You CAN copyright the execution of an idea, in certain circumstances, which is what Dan has done.

    So, Dan would own the rights to something like ‘a video of two teams, one in black and one in white, passing a basketball, during which a person dressed as an animal walks through the game, to demonstrate the concept of change blindness’. The fact that in 1999 he did successfully copyright it shows that it can be done, although it is quite rare.

    So, to reiterate, it’s not the idea he has rights to, it’s the execution of it.

  5. Martin, have you asked Dan if you can use his video in your classes?

    Writerdd, your quote actually shows why Dan owns the copyright.

    “Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)”

    Well, his work HAS been fixed in a tangible form of expression, and he is defending it, which is the right thing to do. How is his video any different from a choreographed dance piece? It’s not.

  6. And “Copyright protects “original works of authorship” that are fixed in a tangible form of expression. ”

    That is exactly what the video is.

    It’s extremely important to note that I never said had had copyrighted or was trying to protect an IDEA, I specifically said the ‘execution of a concept’. Or as the legal blurb says, ‘a fixed form of expression’.

    Not sure where the confusion has come from really.

  7. Just to let you know, I’ve added an update to the article to say that Dan has decided not to pursue, given that he’d be fighting the British Government. It should be noted, however, that he does have a case given that the ad has been distributed on international platforms. But I must admit I would think twice before suing the Government, too.

  8. Ok, that’s what I was wondering/saying. If I to0k some movie and copied it with my friends in it or something, that’d be infringement. So, if someone makes a video with people playing basketball and a gorilla, isn’t that the same thing?

    I guess I was confused by the people saying that it wasn’t copyright infringement, because to me it sounded like it was.

  9. Kimbo, in this case, Dan makes money from selling DVDs of his video, and in 1999 specifically copyrighted it (and I’m pretty sure has successfully brought cases in the USA for infringement), so yes, it’s the same as any other commercial movie.

    Unfortunately, though, a combination of slightly different copyright laws in the UK, and the pointlessnes of trying to sue the government, have killed this one dead, at least this side of the pond. Dan still retains all his legal rights in the USA. And of course, if he could be bothered with the expense and grief, he could make a claim for international distribution, as the new ad is available in other territories. But then the Queen would probably set her corgis on him :(

  10. Something I find personally frustrating, which I touched on in my post, is that ad execs are happy to just nick other people’s work and pass it off as their own. Case in point, I’ve seen comments on industry blogs from ad execs defending the agency’s actions on the grounds that it’s commonplace. That does not, in my opinion, make it OK. Work with the originator of the content, it’s not difficult, I do it all the time. If I see an amazing piece of art or whatever and think it has commercial potential, I call the artist or their agent and work with them to create the ad. Then, two things happen: 1) the ad is always much better for having the input of a brilliant mind (apart from my own) and 2) I’m not being an unethical jerk and can sleep at night.

    Of course, sometimes it’s too expensive to do that, so I *shock horror* THINK OF MY OWN IDEAS!! A concept which seems to be entirely alien to many ad execs.

  11. The fact that in 1999 he did successfully copyright it shows that it can be done, although it is quite rare.

    Well, I’d have to check into that more, but it doesn’t make any sense to me based on what I’ve read about copyright law. Basically you don’t “copyright” something. When you create something tangible, it is automatically covered by copyright. If you wish, you can register the copyright which makes it easier for you to prosecute people should they infringe upon your rights. But even if you don’t regsiterd your copyright, you still automatically own copyright on your photo, text, video, etc. by the simple virtue that you created it.

    Dan may think he copyrighted his idea, but he only copyrighted his actual, tangible video, his execution of the idea; not any and every executation of the idea; only the one he created. If someone else makes something using the same idea, that is totally legal. If they copy his movie exactly or very closely, duplicating it in detail not just the general idea of a gorilla walking through a basketball game, that is an infringement. Not having seen the ad, I can’t say how close it is, but that would ultimately be something that lawyers would have to duke out in the courts.

    This is all US law. As others have said, laws in other countries may be different, and international copyright law gets even more confusing.

  12. I feel like I’ve learned a lot about copyright law from this post! And it’s really been interesting.

    To quote Teek:

    I’ve seen comments on industry blogs from ad execs defending the agency’s actions on the grounds that it’s commonplace. That does not, in my opinion, make it OK. Work with the originator of the content, it’s not difficult, I do it all the time. If I see an amazing piece of art or whatever and think it has commercial potential, I call the artist or their agent and work with them to create the ad. Then, two things happen: 1) the ad is always much better for having the input of a brilliant mind (apart from my own) and 2) I’m not being an unethical jerk and can sleep at night.

    I can imagine that it is difficult to constantly be full of creative new ideas and this sounds like a reasonable and ethical way to deal with the prospect of working with others’ ideas.

  13. Dan may think he copyrighted his idea, but he only copyrighted his actual, tangible video, his execution of the idea; not any and every executation of the idea; only the one he created. If someone else makes something using the same idea, that is totally legal. If they copy his movie exactly or very closely, duplicating it in detail not just the general idea of a gorilla walking through a basketball game, that is an infringement. Not having seen the ad, I can’t say how close it is, but that would ultimately be something that lawyers would have to duke out in the courts.

    I remember thinking while studying business law in undergrad that the art of the law is to take the abstract and highly subjective concept of fairness and make concrete laws and decisions. I can understand how it would be difficult to copyright an “idea” or to draw the line on exactly when infringement has occurred. So, from a legal perspective, it’s hard. But can we at least agree that it’s unethical to steal someone’s idea and use it (particularly for monetary gain) with no conversation or acknowledgement at all (which is what happened here)?

  14. teek- shouldn’t you be doing something more fun (like eating cake or opening presents or having a drink) today instead of arguing the finer points of copyright law?

    Teek definitely should. Isn’t it her birthday?

    As for me, I’m at school so this is actually more fun than what I should be doing.

  15. OK, I just watched both videos, and I do think there may be a case that this is close enough to be considered a copyright infringement. (Subjective judgment, obviously.) Copyright laws in the US are sometimes ambiguous, and in some cases contradict each other, and the concepts are difficult to nail down.

    For example, tkingdoll and I both are reasonably intelligent and both have some knowledge of copyright law through our work, and we both came to different conclusions from the same verbiage quoted from US copyright law.

    Unfortunately, the only way to be sure in specific instances like this is to take it to court.

    (BTW, tkingdoll, I don’t think it would be at all unethnical for you to link to both videos.)

  16. WriterDD you’re exactly right about the way copyright works in the U.S. Once you create the work, it’s protected by copyright. Registration really only serves to make it easier if a copyright holder needs to sue an infringer. In fact, you don’t even need to put the little (c) thingy on it. That sort of notice, again, makes it easier for you if you need to sue for infringement.

    As far as an infringement action goes, you basically have to show that the infringer was or should have been aware of the first work, that a significant portion of the original work has been copied, and that the copied parts were in fact copyrightable. (It’s actually a bit fuzzier than that, but we spent weeks on it in law school,so I’m summarizing.)

    I haven’t watched the ads, but based on your description, I think your conclusion is correct. If the second video closely duplicates the content of the first, then it would at least make it to trial. After that, the subjectivity factor makes prognostication nearly impossible.

  17. Yeah, ‘registering the copyright’ is what Dan did – like I say, I’m 99.43% sure he’s successfully brought action in the USA about this video, so perhaps it was to coincide with the first of those.

    I can’t, annoyingly, find any references to his other suits though.

  18. http://copyrightservice.co.uk/copyright/p01_uk_copyright_law has the gen on UK copyright.
    The relevant bit:

    Interpretation is related to the independent creation rather than the idea behind the creation. For example, your idea for a book would not itself be protected, but the actual content of a book you write would be. In other words, someone else is still entitled to write their own book around the same idea, provided they do not directly copy or adapt yours to do so.

    Names, titles, short phrases and colours are not generally considered unique or substantial enough to be covered, but a creation, such as a logo, that combines these elements may be.

    In short, work that expresses an idea may be protected, but not the idea behind it.

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