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So… the Satanic Temple is suing Netflix for $50 million for copyright infringement. Please insert your own joke here.
To be honest, you would kind of hope that the Satanic Temple would, you know, maybe have a bit more excitement when filing federal cases, but this case is just… dumb. I’m almost wondering if it’s just a sort of publicity stunt for both the Satanic Temple and the Netflix series Chilling Adventures of Sabrina. The crux of the complaint is that the show features a Baphomet statue that they feel is too similar to their own Baphomet statue (which the Temple tries to get erected in front of courthouses who want to post the 10 Commandments). If you’re thinking but isn’t Baphomet "a historical deity which has a complex history, having been associated with accusations of devil worship against the Knight Templar," I’d agree with you and perhaps copy and paste that statement straight from the Satanic Temple’s complaint. But… wouldn’t that also likely mean that it had been around in a design form for many, many years, meaning most depictions are probably public domain? Yes, again. Hell, even the complaint itself explains this:
The classic visual representation of idea of Baphomet is an image created in
or about 1856 by an occult historian Eliphas Levi (the “1856 Baphomet”), which is notable for its
use of a seated figure, with exposed large voluptuous female breasts, androgynous arms, a seeming
male lower body and a Sabbatic Goat’s head. A copy of the historic Levi drawing of Baphomet
is annexed as Exhibit E.
Yes, yes, I know you want to see Exhibit E, so here it is:
So, does the Temple’s Baphomet resemble that? Sure does. Here it is in another exhibit:
And let’s say it’s pretty clear that whoever designed the Baphomet statue in the Sabrina show was pretty clearly copying the Satanic Temple’s Baphomet. It’s the same thing:
But is it infringing? First off, how much of the Temple’s Baphomet is actually protectable? Not very much. The Temple notes that it made Baphomet’s chest to be a male chest, rather than a female chest (to prevent courthouses from blocking their requests on the grounds that an exposed female breast — on a mythical winged beast — might be deemed "obscene"). The Temple also notes it added the children to the sculpture, which at least is something different.
The lawsuit, filed by lawyer Bruce Lederman, is full of useful nuggets — many pointed out by Sarah Burstein. It opens up by saying that:
This case presents, among other things, a textbook example of the hornbook explanation of copyright protection that copyright law protects unique expressions, but not the ideas themselves.
Hornbook in legal terminology does tend to mean a settled legal principle, but it’s difficult to believe that the lawyers weren’t going for a bit of a pun here.
There’s a copyright claim, but beyond the question of what is even protectable here, Burstein highlights that the Satanic Temple doesn’t even really show that it has a valid copyright at all, since the sculpture was done on commission, and it’s not clear that the copyrights were properly transferred:
Interesting issue #1: Does @satanicpsalms actually own the copyright in this sculpture? The complaint says it was a work made for hire but the facts alleged don’t clearly support that conclusion: pic.twitter.com…
— Sarah Burstein (@design_law) November 8, 2018
There’s also the fair use issue. This is a statue that happens to be seen in a TV show. While there do tend to be insurance companies and entertainment lawyers who demand that every possible thing seen on a screen must first be licensed, that’s not how copyright law actually works (or it would be impossible to film a ton of stuff).
On the trademark side, Burstein also questions whether or not there’s a valid trademark, while I’d question (if there even is a trademark) whether or not these are even competing in the same marketplace.
Also, on the trademark claim, the lawyers repeatedly talk about "forbidden dilution" (which feels vaguely Satanic, now that I think about it…), but that appears to be a weird misreading of § 115, which notes that false designations of origin, false descriptions and dilution ARE forbidden. Admittedly, the law does not have that "are" but it’s clearly implied by the title of the law which puts forbidden after the dilution, rather than before it in the lawsuit.
At the very least, Forbidden Dilution, is a fun band name for some trademark lawyers.
Anyway, let’s dig in a little more here:
Defendants have used the TST Baphomet with Children in ways that falsely
designate its origin and are misleading and false to the extent that the Sabrina Series indicates,
impliedly and expressly, that the TST Baphomet with Children is a symbol of evil, associated with
forced-devil worship, cannibalism, and murder.
Man. The Satanic Temple is getting soft. (More specifically, what is the actually likelihood of confusion here? Even more specifically: come on, really?).
Among other things, TST designed and commissioned the TST Baphomet with
Children to be a central part of its efforts to promote First Amendment values of separation of
church and state and equal protection. Defendants’ prominent use of this symbol as the central
focal point of the school associated with evil, cannibalism and murder blurs and tarnishes the TST
Baphomet with Children as a mark of TST.
I totally get and support the First Amendment principles behind the Satanic Temple’s attempt to get the statue installed as a creative form of protest against using the 10 Commandments at government buildings. But, it’s a funny way to say you support the 1st Amendment to use that as part of your argument against a TV show that has its own 1st Amendment protections.
Anyway, this case is unlikely to get very far and I’m not convinced it was intended to get very far. It’s certainly not leading to the Satanic Temple getting $50 million. But… it might lead more people to watch the Netflix show. So, from that perspective, this does feel just a wee bit like a devilish PR stunt, even if that’s not what it was intended to be.
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