Rapp on This: What me, plagiarize?

Rapp on This: What me, plagiarize?

So last week Time magazine unveiled its current cover: the White House, looking like it’s being painted red, with brightly colored Russian orthodox “onion domes” coming out of the roof. Quite the striking graphic commentary about the increasingly clear and horrifying influence the Kremlin has on the shitgibbon and his minions.

But then a few hours later Mad magazine posted on its blog a page from its December 2016 issue, showing the White House with a bunch of similar onion domes coming out of the roof. In its typical and delightfully cheeky way, Mad took down Time:

Once More, With Stealing Dept.:

In 1952, Time Magazine called MAD “a short lived, satirical pulp.” Now they’re stealing our material! Honestly, we’re flattered, but we would have appreciated a credit — something like, “Idea stolen from MAD, which in 1952 we called a short lived satirical pulp!”

As it turns out, both graphics interpose the same Russian building on the White House: St. Basil’s Cathedral, which is located on Red Square. For you history buffs out there, St. Basil’s was built in the 1500’s for Ivan the Terrible, who, as legend has it, blinded the builders upon the cathedral’s completion so they couldn’t build anything else as beautiful. Stalin wanted to tear it down after the revolution, but an architect ordered to prepare St. Basil’s for demolition told Stalin to stick it. Stalin stuck the architect in the slammer for 5 years, but also decided not to tear the joint down, turning it instead into a museum in 1923.

Time’s and Mad’s versions simply show St. Basil’s from different perspectives. If you look closely, you’ll see the “onion domes” are the same, just situated differently. And “onion domes,” by the way, is the correct term. In reporting the story, CNN referred to them as “Russian minarets” and promptly got pilloried in the Tweet-o-sphere. Or is it the Twit-o-verse? Minarets, apparently, are towers attached to Islamic mosques, and not to those attached to formerly Russian Orthodox cathedrals.

So, did Time rip off Mad? Who knows? I’ll tell you who knows: the guy who did the Time cover, who claims that he hadn’t seen the Mad cover. A Facebook friend (and former law-school student of mine) pointed out that it was plausible that the two works were developed independently. Which is not only true but indicates that maybe someone was listening to my class lectures ten years ago!

Back in the ‘70s, a lounge singer in the Midwest sued the Bee Gees, claiming he had written a tune almost exactly like “How Deep Is Your Love” well prior to the Brothers Gibb’s monster Saturday Night Fever hit. The Bee Gees were able to establish that it was impossible they had heard the lounge singer’s song, having been holed up in a castle in France reinventing themselves from a chipper folk-rock trio into a white-suited disco juggernaut. The judge, in throwing out the lawsuit, mentioned the uncanny resemblance in the two songs, with the same unusual chord changes and melody. Close, but without actual copying, no cigar.

If the Time guy is on the level, there’s no foul. There can be no copyright infringement without copying, and if the Time guy didn’t see the Mad page, well… And the idea of planting Russian-centric imagery on the White House, while clever, isn’t wildly original, and St. Basil’s onion domes are among the most iconic architectural artifacts in Russia, if not the world. So it’s quite possible that there’s independent creation here, and if so, no infringement.

But even if Time did rip off Mad, I don’t think it would amount to copyright infringement. Why not? Because Time would have merely stolen Mad’s idea of sticking St. Basil’s domes on the White House, and nothing more. And ideas generally aren’t protectable by any legal theory.

Breaking down a possible infringement claim, Mad certainly can’t say it owns the image of the White House; they are different pictures, anyway. Maybe the photographers of the respective photographs might have a beef with Mad or Time, but that’s another story. Then there are the domes. The images are clearly different, having been taken from different perspectives or perhaps photoshopped in differently. If Time had simply glommed Mad’s picture and slopped some red paint on the White House there might be something, but here? Nope. It’s not even close.

If Time did steal Mad’s idea, it would be plagiarism, which is an ethical problem, and not infringement, which is a legal one. So Mad gets bragging rights to coming up with the idea first. And if it can somehow show that Time knew of the Mad image before last week, well, Time gets caught with its hand in the cookie jar.

But not much more than that. The Time cover, suitable for framing or wrapping fish.

Paul Rapp is a local intellectual property attorney whose comedic sensibilities, such as they are, were molded by wasting time reading Mad magazine as an impressionable youth.

Photo: Twitter @Madmagazine

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