Friday, 29 May 2015

YES: Judge Says “No” to Roger Dean’s Avatar Lawsuit: Should He Have Said “Yes” Instead?

On September 17, 2014, Judge Jesse Furman dismissed world renowned artist Roger Dean’s lawsuit against James Cameron and the motion picture Avatar. 1 If the name Roger Dean does not strike an immediate chord, be assured you have doubtlessly seen his work. He is best known for designing album covers and artwork for the band Yes, including the albums “Fragile,” “Close to the Edge,” “Relayer” and “Keys to Ascension.” 2 He has also designed album covers for Uriah HeepAsia, and Gentle Giant3 Dean had alleged that the movie had copied elements from 14 of his paintings.
These allegations were nothing new. Immediately upon the release ofAvatar, numerous commentators noticed the similarity between Dean’s work and the depiction of the planet Pandora in Avatar4 So obvious was the connection that Cameron was directly asked about it in an interview with Entertainment Weekly. 5
“Where did Cameron get the idea for the floating mountains? Was that from a Yes album cover?
‘It might have been,’ the director says with a laugh. ‘Back in my pot-smoking days.’” 6
I had very much the same experience when I watched Avatar. In particular, this scene immediately reminded me of Dean’s cover to Yes’ “Keys to Ascension.” The Avatar scene is on top. Dean’s art is on the bottom.
Before we enter into a full-fledged analysis of the Judge’s decision, I must give the following cognitive bias alert: I am a huge fan of both the band Yes and Roger Dean’s work. I have two of his books. So feel free to view my analysis through that prism.
In my mind, the issue here is a test for infringement called “total concept and feel.” The Second Circuit, which governs the District Court here, appears to be the originator of this test. 7 “Total concept and feel” arises because a “defendant may infringe on the plaintiff’s work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiff’s work of art…are considered in relation to one another.” 8 The Court here, makes a passing reference to the test of total concept and feel, but engages in absolutely no discussion of its elements or how they might apply to this case. This is a serious error in my opinion.

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