I’ve been practicing intellectual property law now for over twenty years. In that time, I have received many calls from individuals and companies alike who feel that their artistic expression has been copied. Understandably, seeing or hearing what one feels is an infringement of one’s hard work causes anger and frustration. And…a desire to sue. However, not all copying rises to the level of copyright infringement. A recent case against Beyoncé proves instructive in explaining how the law works in this regard.

In the case of Fulks v. Beyoncé Giselle Knowles-Carter, et al, No. 16 Civ. 4278 (JSR) United States District Court for the Southern District of New York, Matthew Fulks, an independent filmmaker and creative director at a television station alleged that Beyoncé, Sony, HBO etc. infringed his copyright in the short film “Palinoia” (the “short”) by distributing the “Lemonade” film and trailer. In his complaint, he identified certain aspects of his short that he felt Beyoncé copied. They included: (1) nine examples of “visual” similarities; (2) “audio” similarities; and (3) similarities in “total concept and feel.” He also pointed to “seemingly unrelated visuals in rapid montage, with the recitation of a poem used as voiceover against a distinctive soundtrack.” Beyoncé and the other defendants filed a motion to dismiss the lawsuit.

Explanation of the Law

In the absence of direct evidence of copying, copyright infringement requires showing (a) that the defendant had access to the copyrighted work and (b) the substantial similarity of protectable material in the two works. Because Beyoncé and the other defendants did not dispute access to Fulks short, their motion to dismiss the case focused only on the ground that the allegedly infringing works are not “substantially similar” to Faulk’s short as a matter of law.

Under the law, works are substantially similar if an “ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.” In applying the test, courts “compare the contested design’s total concept and overall feel with that of the allegedly infringed work . . . as instructed by our good eyes and common sense.” Courts then ask whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” In the final analysis, the inquiry necessarily focuses on whether the alleged infringer has misappropriated the original way in which the author has “selected, coordinated, and arranged” the elements of his or her work.

As an initial matter, “the similarity between two works must concern the expression of ideas, not the ideas themselves. In addition, under the doctrine of scènes à faire, ‘elements of an image that flow naturally and necessarily from the choice of a given concept cannot be claimed as original.’”

Analysis / Conclusion

With these principles of law in mind, the Court found that “the plaintiff’s alleged similarities consist almost entirely of clearly defined ideas not original to plaintiff and of stock elements with which even a casual observer would be familiar.” Examples of this included:

“Graffiti and Persons with Head Down.” – Both scenes feature the central character in a “state of distress,” “leaning against a stable structure,” with “head down, face hidden from the viewer.” The central characters are “facing left, and are shot from the subject’s left.” The “structures display hand-painted graffiti words in similar styles.”

The Court reasoned that the concept of a “state of distress” is an unprotected idea not original to plaintiff. It also flows naturally and necessarily that a distressed character would be leaning (as opposed to dancing) against something stable (as opposed to delicate) and that his or her head would be down (as opposed to up). Similarly, the nature of the shot requires that the subject’s face be “hidden” because, unless the camera was pointed upwards, the downward tilt of the subject’s head would block the line of sight. These elements are therefore scènes à faire which cannot provide the basis for substantial similarity. The Court went on to find that once stripped of unprotected elements and scènes à faire, the scenes from the plaintiff’s short and Lemonade have very little in common. There were such overall differences in structure, theme, plot, characters, mood, setting, and order of the nine “unconnected” scenes pointed to by plaintiff that the Court granted a full dismissal of the case.


It has been said, “originality is nothing but judicious imitation.” There may be something to that. In this case, the result would likely have been quite different if the arrangement of scenes were the same in Lemonade as in the plaintiff’s short film. There are several factors that go into a copyright infringement analysis. Many of the courts in the various federal circuits address these factors in somewhat different ways. Accordingly, one may want to consider consulting copyright counsel early on in the creative process.

©2016 Albert F. Davis, Esq.

This law update is intended for general information purposes only. One should not consider the update legal advice or legal opinions relating to any specific facts or circumstances. An attorney-client relationship is not created by reading this update. Please feel free to contact A. F. DAVIS LAW for further information.