Substantially Similar--A Blog on IP Issues, Writing and Film
Giving Elliot Ness His Due
by John Aquino on 01/29/14
A January 10, 2014 proposal from three U.S. senators to name the headquarters of the federal Bureau of Alcohol, Tobacco, and Firearms in Washington after Elliot Ness has drawn fire from Chicago alderman Ed Burke and others who have suggested that Ness had no more to do with bringing Al Capone to justice than Mrs. O'Leary's cow had to do with the Chicago fire of 1871.
Burke cites a Ness biographer that the man was far removed from the film and television portrayals of Ness by Kevin Costner and Robert Stack.
I have written a great deal about the differences between film portrayals and the facts. And Burke has a point. But I think his argument is both harsh, disrespectful of the real-life Ness, and much ado about something most people already knew.
I have a personal memory here. I was growing up when the tv series The Untouchables starring Robert Stack as Elliot Ness debuted. My family lived in Washington, D.C., and we took visiting relatives to see the FBI building there. I kept whispering to my Mom, "Are they going to talk about Elliot Ness?" The FBI agent giving the tour asked for questions, but I was too shy. My mother, reluctantly, shouted out, "They want to know about Elliot Ness!" I remember that, rather than make fun of the tv series, the FBI agent was incredibly respectful of Ness. "Elliott Ness was not an FBI agent. He was a federal agent working for the U.S. Treasury Department and part of the team that brought down Al Capone. He did good work," the agent said about Ness, who had died not too long before. The agent couldn't resist a jibe at the end, though, saying, "Of course, FBI revolvers only shoot six times," referring to tv heroes who seemed to be able fire off a dozen shots from a six-shot gun without reloading.
That FBI agent's evaluation of Ness seems to be supported by facts. Ness was part of the Treasury Department's two-pronged effort to bring the Chicago-based gangster Al Capone to justice: Ness headed the group that went after Capone for violations of the Volstead Act (Prohibition) while the second group gathered information to prosecute Capone for tax evasion. Ness and his "Untouchables," so named because attempts by Capone's men to bribe them were rejected, raided Capone's breweries, stills and speak-easies, caused millions of dollars worth of losses for Capone, and built up a 5,000 count Volstead Act case against Capone. There were numerous attempts against Ness' life and one of his men was murdered. But, while both the Volstead Act and tax-evasion counts were part of the indictment against Capone, it was the work of the tax-evasion group and the 22 tax counts in the indictment that ultimately brought Capone down in 1931.
After Prohibition ended in 1933, Ness became Cleveland's safety director where he was in charge of both the police and fire departments, helped modernize the police department, and fought police corruption. His work in Chicago and Cleveland would seem to be reason enough to honor him with a building named after him.
Ness' later life was not as happy. He unsuccessfully ran for mayor of Cleveland in 1947, went through several marriages, failed in business, and battled alcoholism. Toward the end of his life he worked on a book about his career with former newspaper man Oscar Fraley. Ness' contribution appears to have been talking to Fraley and writing 20 pages that are currently in the collection at Western Reserve Historical Society in Cleveland and that appear to be fairly accurate. Ness died in 1957 at the age of 54 shortly before the book was published. Fraley, like some newspapermen at the time, felt the need to make stuff up.
The book The Untouchables was purchased for television by Desilu Studios, run by Desi Arnaz and Lucille Ball. The tv series debuted on the ABC network in 1959. The first few episodes carried the credit, "Based on the book by Elliot Ness and Oscar Fraley." Later episodes carried the credit, "Suggested by the book by Elliot Ness and Oscar Fraley." While early episodes were based on incidents in Fraley's already embellished book, the scriptwriters stretched the truth even more. Since they needed to fill three television seasons of roughly 40 episodes each, they had Ness capture Ma Barker, Baby Face Nelson and other criminals whose capture the real Ness had nothing to do with. Toward the end of the series, they ran out of real-life villains and made some up.
For one episode called "The Big Train," the scriptwriters brought the "what-if" technique to a real-life event. Capone was transferred from the Atlanta State Penitentiary to the newly-built Alcatraz prison on an island just off the coast of San Francisco in 1934. The scriptwriters imagined what would have happened if Capone's gang had tried to break him out in transit. They utilized the cliche idea of a corrupt prison guard who was bribed to help Capone escape. One of Capone's guards was still alive at the time and after the episode was broadcast sued for libel in state court. You see, he had bragged for years that he had guarded Capone and so felt people would identify him with the fictitious corrupt prison guard in the tv show. The state court refused to dismiss the case, and ABC reached a settlement with the guard. Capone's widow and son also sued ABC about the show--unsuccessfully.
Brian De Palma's 1987 movie The Untouchables was also "suggested" by Fraley and Ness' book and made even more things up, as did a second television series that often had Capone and Ness meeting face-to-face. In real life, they do not appear to have met.
Ness was no saint. In his heyday, he loved publicity. It was he who probably leaked the story of one of Capone's men trying to bribe Ness' men and that inspired the name given to Ness and his men. But he was also a hard-working law enforcement officer whose failures were off the job.
And so, while the television and later the screen Elliot Ness were far removed from the real-life article, little of that was Ness' doing. And he did, for almost two decades, accomplish a great deal for the benefit of law enforcement. He also, in his life and in his embellished film and tv personas, inspired young men and women to fight crime, to join the police department, to become federal agents. And that is not a bad legacy.
Copyright 2014 by John T. Aquino
Tribute to an Editor: Don Moser of the Smithsonian
by John Aquino on 01/02/14
Don Moser, who was editor of the Smithsonian magazine for 30 years (1981 to 2001), died recently. He was 83. I was a magazine editor and publisher around the same time, only I worked for trade magazines and he worked for the Smithsonian, that wonderful hybrid of consumer magazine style and museum magazine content, but what a museum.
I only met Don once. I was told that I was one of three finalists for the position of publisher of the Smithsonian, succeeding Joe Bonsignor. I had interviewed with practically everyone there, but they said I had to meet Don..
Don had worked at Life magazine and really was an editor of the golden age, very hands-on, very old school, We met at a restaurant. He ordered a drink. I consequently ordered one. He inhaled that one and ordered another. I paused a moment and then ordered another. After just a little while, he ordered a third. I passed. Don kind of sniffed at me, acknowledging that I had fallen behind, in several senses of the word.
I had read that he was interested in astronomy. I mentioned that my Dad was 11 when Haley's Comet had appeared in 1910 and had told me how spectacular it was. Don was very interested and was looking forward to the reappearance of the comet that year, 75 years later. (We exchanged notes for a short time later and he related how disappointed he had been by its reappearance.) We talked about films and smoking and architecture and Ohio (he was from Cleveland, my mother was from Youngstown). It went really well, lasted three hours, and I really enjoyed his company.
I didn't get the job. And I know it wasn't about the third drink. The man who got it did fine and held the job for a number of years. Ad sales fell, but then they did many magazines. Circulation was at 2 million, where it still is.
I stopped getting the Smithsonian a few years later. Maybe just a tiny, tiny bit of that was resentment, but mostly it was because the magazine's scope was so broad--the collection of the Smithsonian Institution--that I noticed that for issue after issue I glanced at it and threw it away. But over the years, when I saw an issue that did interest me, I would read the stories straight through. They always had a beginning, middle, and an end, although not necessarily in that order. They were substantive easy reads.
I later realized that I should have read the issues on topics that didn't interest me. I would have learned a lot.
From his obituary, I saw from the tributes from co-workers and employees that Don was the type of editor that I tried to be. He was responsible for the publication's vision, for the publication's issue-to-issue content, for his staff's well being.
I wish I had known him better. I would have learned a lot.
And I like to think that Don is now where he can see Haley's comet up close whenever he wants.
Copyright 2014 by John T. Aquino
The Verdict Is Kind of In on the Copyright for the Character of Sherlock Holmes
by John Aquino on 01/02/14
The U.S. District Court for the Southern District of New York issued its opinion in the case of Klinger v. Conan Doyle Estate Ltd. on Dec. 26, 2013 and rejected the estate's (and my) argument that the characters of Sherlock Holmes and Dr. John Watson are still protected by U.S. copyright law even though the books and stories that originated the characters of Holmes andWatson have fallen into the public domain.
The ruling was viewed in the media as a clear victory for the plaintiff Leslie S. Klinger, who had asked the court for a declaratory judgment that the characters of Sherlock Holmes and Dr. John Watson were no longer protected by copyright in the United States and that he could then publish a collection of new stories about Holmes and Watson without paying the estate a licensing fee. The characters of Holmes and Watson are considered "hot" since Robert Downey Jr. and Jude Law have played them in two successful movies and there are separate television series using the characters in contemporary settings currently playing in the UK and the United States.
On close reading, the court's decision is a blow to the Conan Doyle estate but not necessarily the clear victory for those wishing to use the characters without fee some would think.
The argument the estate--and separately I in these blogs--proposed is that the use of the characters by the original author--Doyle--in post-1923 stories that are still protected by U.S. copyright laws was essentially part of the continued development of the characters by the author. The characters, the estate contended, were therefore still protected by the law. Judge Ruben Castillo rejected the argument, calling it "novel," and relied on the 1989 decision by the U.S. Court of Appeals of the Second Circuit in Silverman v. CBS, 870 F.2d 40 (2d Cir. 1989) concerning pre-1948 radio scripts for the Amos & Andy Show. The scripts had fallen into the public domain because the owner had not renewed the copyright as then required by the law. Silverman wanted to write a musical based on the characters of Amos and Andy, but CBS demanded that he obtain a license from the network.
Silverman had argued, as did Klinger later, that the characters of Amos and Andy had fallen into the public domain when the copyright for the original scripts had. The court found that pre-1948 elements of the characters had indeed fallen into the public domain but that post-1948 elements, including those added to the characters when the show was transferred from radio to television, were protected by copyright as "increments of expression."
The Conan Doyle estate had attempted to distinguish the complex and fully developed characters of Holmes and Watson from the stereotypical characters of Amos and Andy. But Castillo played it straight down the line and wrote that Silverman and subsequent rulings had allowed for no such distinctions.
Accordingly, Castillo found that pre-1923 elements of the characters of Holmes and Watson were in the public domain but that post-1923 elements were not.
Klinger had argued that the post-1923 elements of the characters were simply events such as Watson's second marriage, but the court hewed to the Silverman line of "increments of expression" being protected by the law. The court also denied Klinger's request for an injunction preventing the Conan Doyle estate from ever suing for infringement of the Holmes and Watson characters again.
The court stressed that Klinger had not asked the court whether his new anthology would infringe copyrights held by the Conan Doyle estate but the extent to which elements of the characters were protected by copyright.
Klinger proclaimed victory, stating that he was going ahead with the new anthology and would stay away from post-1923 elements of the characters.
The attorney for the Conan Doyle estate said the estate is considering an appeal but stated that neither its existing licensing agreement for the movies and television series nor its claims under trademark law were affected by the court's ruling. He also indicated that the characters of Holmes and Watson are highly delineated and depend on elements introduced in the post-1923 stories that are protected by U.S. copyright law and that go beyond such elements as Watson's athletic ability.
And so, the scene is likely set either for an appeal or an infringement suit once Klinger's book comes out, highlighting elements of the Holmes and Watson characters that, the estate claims, are still copyright protected.
Copyright 2014 by John T. Aquino. This article is intended for educational purposes and does not constitute a legal opinion.
Year-End Thoughts: Ron Burgundy at the Newseum and Obama's Pinnochio
by John Aquino on 12/26/13
For a while I felt that that I was the only one to be outraged that the Newseum, a museum in Washington, D.C. dedicated to journalism, had an exhibit on Ron Burgundy.
Ron Burgundy is a fictional character played by Will Ferrell in the 2004 movie titled Anchorman. The movie was not a huge hit. If you factor in promotional costs, it appears to have lost money on its initial run. On video, DVDs, and on demand, the movie acquired a cult following, primarily because the viewers could zero in on catch phrases and specific scenes.
A sequel, Anchorman 2, was released at Christmas 2013. To promote it, Paramount and the production companies involved launched a mammoth campaign that includes Ferrell as Burgundy doing Dodge car commercials and anchoring some local news programs. And then there was the Newseum exhibit.
The museum's officials justified the exhibit. They said the original movie was focused on some serious themes like a woman trying to become anchor on a local news broadcast in the 1970s. And they said that it was good to be able to take a joke.
A joke? Ron Burgundy was and is an egotistical, no-talent fathead with a booming voice. He drinks scotch before he goes on the air. His colleagues are equally talentless and the big set piece is a battle between competing broadcasters in an alley. The would-be anchor lady gets on the air because someone tells her that Burgundy will read anything that is put in front of him. She sneaks in and types his copy so that he says "f***k you to the audience. he's fired and she gets his job.
Why would the Newseum celebrate this film and this character? The Newseum is privately funded and always looking for money. The exhibit was presumably part of the movie's promotional expense. But why shouldn't professional journalists of all kinds be offended by this exhibit?
Well, maybe they were. Or at least the public didn't buy into it. The movie's opening weekend was $28 million, which is less than the first movie. It strikes me as someone trying to make something out of nothing and failing. However, when the second movie is on video, DVD, and on demand, it will probably become a cult movie two and in 9 years they may make an Anchorman 3.
Also at year end, on Dec. 16 The Washington Post awarded the 10 best Pinocchios of the year, awarded for the biggest public lies. One of them was for President Obama's statement assertion that "the day after Benghazi happened, I acknowledged that this was an act of terorism."
Now, you have to remember that during the last debate between President Obama and Mit Romney during the 2012 campaign, Romney said that the president during that speech had not called the Benghazi attack an act of terror and had elsewhere attributed it to an online video that mocked the prohet Muhammad. The moderator, Candy Crowley of CNN, corrected Romney, saying that she had viewed the tape of the speech and the president did say that the attack was an act of terrrorism.
Romney, finding himself debating the president and Candy Crowley, became tongue-tied. He even turned to the president and said, "Didn't you not say it was an act of terrorism?" President Obama looked at him as if to say, "You think I'm going to help you?"
And now, the Post gives President Obama a pinocchio for making the same assertion Candy Crowley had made. The Post wrote, "President Obama did refer to an ‘act of terror’ in the immediate aftermath of the Benghazi attack, but in vague terms, wrapped in a patriotic fervor. He never affirmatively stated that the American ambassador died because of an ‘act of terror.’ Then, over a period of two weeks, given three opportunities in interviews to affirmatively agree that the Benghazi attack was a terrorist attack, the president obfuscated or ducked the question. So this is a case of taking revisionist history too far for political reasons."
And so, Romney was right, for whatever good it does now. Thank you, Candy Crowley. Even Jim Lehrer, who had moderated presidential debates, said that Crowley was out of line for becoming part of the debate.
And so the year ends.
Copyright 2013 by John T. Aquino
Nelson Mandela: The Power of a Man, the Power of Film
by John Aquino on 12/06/13
Nelson Mandela died this week at the age of 95. Opponent of Apartheid, prisoner, president of South America. Throughout his life, he downplayed the idea that he was any kind of saint, and, at his death, journalists who covered him, surprisingly, given the occasion, agreed with him. But his courage, his ability to peaceably work with those who had put him in prison to turn South Africa in to what his opponents feared most, a multiracially-united country, cannot be denied.
I only know of one Nelson Mandela story. I heard it when I was covering a conference on film and intellectual property at the Motion Picture Association of America. The actor Will Smith was a featured speaker, and he spoke on the power of film. He said that he had met Mandela, and, knowing that Smith was a film actor, Mandela told him this story. During his 27 years in prison, a handful of times, he was allowed to join the other prisoners in seeing a film. He said that one day the film was In the Heat of the Night, starring Sidney Poitier as a black Philadelphia detective named Virgil Tibbs who is forced to help Gillespie, a white southern sheriff played by Rod Steiger, solve a murder. At the time, the film was a dozen years old.
In one scene, Tibbs is questioning Eric Endicott, a bigoted white plantation owner, played by Larry Gates. Taking offense at Tibbs' questions, Endicott slaps Tibbs, who immediately slaps him back. Sheriff Gillespie is shocked. Endicott sayts, "There was a time when I could have had you shot."
When the film was shown to Mandela and the other prisoners, the prison officials didn't want to have them see a scene in which a black man slaps a white man, and so they cut the scene out with a scissors. It was clear that something had been cut out. The film jumped abruptly. The prisoners whispered to each other, "What could have been in that scene?" Those who were allowed visitors, asked them, :"Did you see that movie? What was in that scene?" Finally, someone told them, and the word spread throughout the prison. Mandela told Smith that there was such excitement in the prison that somewhere, a movie showing such a scene could be made.
The story says a lot about the horror of apartheid, the power of film, and the power of Mandella who turned the situation in South Africa from that to a more democratic country.
Copyright 2013 by John T. Aquino
