Taking a Cue from Aaron Moss, Further Thoughts about Miramax v. Tarantino

The blog Copyright Lately by attorney Aaron Moss is a must-follow for copyright nerds. His posts are always lively and filled with historic details or other arcana that will appeal to the true enthusiast, and in that spirit, Moss’s latest post got me thinking. It’s about the Battaille Royale between Quentin Tarantino and Miramax Pictures over Tarantino’s intent to sell seven exclusive NFTs based on high-resolution digital scans of selected handwritten pages from the original Pulp Fiction screenplay. “But while Miramax v. Tarantino is being billed as the first major legal dispute involving copyrights and NFTs, it really isn’t a dispute about NFTs. Frankly, it’s barely a dispute about copyrights,” Moss writes.

Describing the NFT aspect of the lawsuit as a distracting “shiny object,” Moss explains, “… this is primarily a contract dispute—a fight about whether the publication rights Quentin Tarantino reserved in his agreement with Miramax include the right to sell digital screenplay scans. While Tarantino happens to be selling the scans as NFTs, the principal legal issue in the case will be whether he has the right to create and sell them at all. This will hinge on the meaning of Tarantino’s reserved ‘screenplay publication’ rights.”

Tarantino reserves the right to publish the screenplay, and if the manuscript pages to be scanned are considered “published” segments of the script, Tarantino likely wins. If, on the other hand, the scanned pages (with bonus features) are considered merchandise, then Miramax likely wins because those rights are reserved by the studio. So, of course, Moss is right that this is barely a copyright case and that the NFT aspect is largely irrelevant, except, of course, that copyright law can tell us something about the nature of the works in dispute, and this may include how they will be made available.

Particularly because we do not have the proposed NFTs to examine, the questions are a bit murky as to what kind of works are ultimately in dispute. But let’s keep in mind that Tarantino reserves the right to publish the expression originally fixed as a screenplay, and what Miramax reserves is the right to prepare derivative works based on the expressions originally fixed in the motion picture, which would include merchandise. Miramax also owns the trademarks on Pulp Fiction, which it accuses Tarantino of infringing in the promotion of the NFTs.

“A Connecticut Yankee in King Arthur’s Court, page 1.” Chad Kleitsch, 2005. Used by permission.

This case made me think immediately of my friend Chad Kleitsch’s work in scanography (a term he might have coined) in which he uses a scanner rather than a camera to capture latent images, turning various objects into works of visual art. Using backlight in the scanning process and applying often painstaking work in post, Kleitsch generally prints his images in large scale, and in these prints, ordinary objects—from flowers to baby dresses—become artworks which are ineffably distinct from the artifacts themselves.

Among the objects Kleitsch has made into artworks are various culturally significant, handwritten documents, for instance, the first page of Chapter 1 of the manuscript for A Connecticut Yankee in King Arthur’s Court. Mark Twain’s writing is, of course, in the public domain, but even where the expression may be free to use, the right to reproduce objects like manuscript pages is vested in the owners of those objects, and this scan was made with permission of the New York Public Library, where the document resides. (In this regard, Tarantino is presumably the owner of the physical manuscript pages he intends to scan.)

Of course, Kleitsch’s scanographed works fit a classic paradigm when he meticulously prints the images and displays these prints in galleries where they are offered for sale. This familiar fine-art mode is arguably the opposite tradition of the NFT craze, and some might even call it outdated, though we shall see. Regardless, my point is that scanned manuscript documents can be unique works of visual art in which the expressive and cultural value of the handwriting on the paper is fixed anew in a manner that changes the context of the original object, often altering, transcending, or commenting upon the expression in the words themselves.

If Kleitsch were to come into possession (legally) of one of Tarantino’s manuscript pages, turn it into a singular work and sell that work at a gallery for a million dollars, not only would I expect him to buy lunch next time we meet, but I think copyright law would likely find that either the resulting visual work amounts to de minimis reproduction of the protected expression (the words on the page), or that the amount of copying of the protected expression is defended under the fair use doctrine for the purpose of making an entirely new work of visual art.

My point in highlighting Kleitsch’s work is to emphasize that a page of writing is simultaneously a fixation of protected expression and an object, which can be made into a new work of visual art, and in Miramax v. Tarantino, a relevant question may be whether the proposed NFTs are considered artified objects or solely reproductions of the expression in the original screenplay. To an extent, the handwriting element ads some weight to the former conclusion, but much depends, I think, on what is ultimately produced and how it is made available. In fact, what Tarantino proposes to create may be more akin to derivative works within the ambit of the motion picture franchise and reeking of merchandising. The Miramax complaint states the following:

The Press Release … described the Pulp Fiction NFTs as containing “one-of-a-kind” content that had “never been seen or heard before, . . . includ[ing]: the uncut first handwritten scripts of ‘Pulp Fiction’ and exclusive custom commentary from Tarantino, revealing secrets about the film and its creator.”

With that kind of promotion, one can at least see where Miramax might have reason for concern. Custom commentary and behind-the-scenes type material in a gimmicky package (and especially using the Pulp Fiction trademark in promotion) is reminiscent of merchandising derivative works based on the motion picture, which falls under Miramax’s reserved rights.

The NFT promos and the complaint imply that Tarantino will not be scanning seven non-consecutive single pages into unique works of visual art (a la Kleitsch) but that he will be scanning seven iconic scenes from the movie, each of which will comprise several pages totaling, perhaps, twenty-five or more, or nearly one-fifth of the screenplay. Arguably, the more pages Tarantino reproduces, even with commentary, the more the NFT would appear to fall within his publication rights. Further the handwritten pages are personal property, which he has the right to make into visual works. On the other hand, would Tarantino have the right to produce a gold-embossed, leather-bound, one-of-a-kind copy of the screenplay to sell at auction? Is that an edition of the screenplay or a unique piece of merchandise? Or is it both? In that sense, how are the proposed NFTs different?

So, although I would expect that the handwritten pages element combined with the publication rights tilt in Tarantino’s favor, a lot may depend on the overall package embodied in the NFT, how it is presented, and (perhaps) whether it is made available to anyone other than the individual buyers. Especially if the material winds up distributed to Pulp Fiction fans everywhere, the manner in which the proposed elements are arranged and presented may look a lot more like merchandise derived from the motion picture, than like publication of the expression embodied in the dramatic work called the screenplay.

So, what is Tarantino ultimately creating? A limited publication of a screenplay, a gimmicky piece of merchandise, or a new work of visual art? Without the works to analyze, it’s very hard to say. But based on the available evidence to date, the proposed NFTs may be all of the above. As such, perhaps this whole venture was best pursued as a collaboration. We shall see.

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