Painting the Grass Red

On Wednesday, November 11, an Artnet News article observed that the Netflix-produced motion picture Beasts of No Nation (2015), directed by Cary Fukunaga, resembles films and photographs created by Irish artist Richard Mosse in certain ways. Specifically, in 2013, Mosse created The Enclave, an installation work featuring images of child soldiers in Eastern Congo, in which the foliage is tinted an otherworldly fuchsia, and Beasts of No Nation includes a scene in which child soldiers take a hallucinogenic drug called “gun juice" that causes the landscape to turn a similar color. Mosse has stated that he does not intend to sue - presumably for copyright infringement? - but did produce a series of images comparing his work to Beasts of No Nation, and released the following statement:

Imagery that I have been making in Congo since 2010 has been used in a derivative scene from the new film Beasts of No Nation. The film's director, Cary Fukunaga, emailed me during production to—as he explained—“pick your brain" because “some of your work has struck our aesthetic appetite." However, he has never cited my work as an influence and even gone out of his way to conceal his sources. I feel it is important to restore the correct authorship to this imagery. Neither myself nor any my collaborators were involved in this film, and we would like to draw a clear boundary between Fukanaga's Beasts of No Nation and what we were trying to achieve with The Enclave. I'd also like to say thank you to the many supporters who have contacted me about this, and hope this clears up any confusion.

But that raises the question of whether Mosse has a viable copyright infringement claim in the first place. According to the Supreme Court, the IP Clause of the Constitution provides that copyright can only protect the original elements of a work of authorship, which do not include facts or ideas. Essentially, the complaint is that Fukunaga copied Mosse's idea of tinting the foliage red in order to metaphorically emphasize the violence of the circumstances. But of course, ideas are not and cannot be protected by copyright. In other words, Mosse is really alleging a plagiarism claim: Fukunaga copied his idea without attribution. But there is no cause of action for non-infringing plagiarism. United States laws permits copying ideas, with or without attribution, even though the artists - and academics - often object.

I was tickled to see that Artnet cited an excellent short essay by Andrew Gilden and Timothy Greene, Fair Use for the Rich and Fabulous?, 80 U. Chi. L. Rev. Dialogue 88 (2013). Unfortunately, Artnet seems to have missed their point, implying that they decry the availability of fair use to the "rich and fabulous," when in fact they argue that it should be equally available to everyone. Not to mention that Fukunaga probably wouldn't need to rely on fair use anyway, given that "make it red" almost certainly cannot be protected by copyright in the first place. But as Gilden observed in correspondence, many courts are unfortunately sympathetic to plagiarism claims that do not state a cause of action under copyright doctrine. So in practice, Mosse might have been able to pursue a claim, even if copyright doctrine appears to say otherwise. (H/T Donn Zaretsky's The Art Law Blog, one of my favorites!)