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March 23, 2004
Breakfast Cereal Icons and Independent Creation
One of the interesting aspects of copyright law is that you cannot be guilty of copyright infringement if you independently create the exact same work. This doctrine of "independent creation" means that if I write a song autonomously that is the same as a song someone else wrote, I can make as many copies of my independently created song as I want without infringing the copyright of the other person's song. Of course, in practice, things aren't that easy for those who want to raise a copyright infringement defense of "independent creation." The fact that one work is very much alike, or even identical to another, would likely give rise to an argument of "probative similarity" or "striking similarity." Either of these would have a tendency to shift the burden of proof to the defendant to show that they could not possibly have copied the allegedly infringed work.
I recently came across an example of what seems to be a case of "independent creation" in which it would likely be possible to find experts who would see "striking similarities" between the two works (The Strange Synchronicity of "The Last Breakfast"). The two works are both parodies of Leonardo Da Vinci's famous fresco The Last Supper. Instead of the last "supper" the parodies depict the last "breakfast." Each uses common breakfast trademarks:
The similarities are incredible. Both pictures have Captain Crunch as Judas, both have Snap, Crackle and Pop, The Trix Rabbit, Tony The Tiger, Lucky The Leprachaun and the Quaker Oats Man. Both have Aunt Jemimah, although Aubrey's painting has her as the Christ figure while Detzner's has Mrs. Butterworth in that role. Still, it is amazing both have a female advertising icon in the center.
Coincidence? According to the artist of the temporally second work, yes.
I actually think this probable for a number of reasons. The first artist, Aubrey Hallis is rather obscure. Also, the subject of the painting doesn't seem terribly original. "The Last Supper" is probably second only to the Mona Lisa as an art icon and consequently, as a subject of parody or alteration. See, DGA Pres to Duchamp: You Scoundrel!. Some other parodies of "The Last Supper" include: Super Hero Last Supper, another Super Hero Last Supper, feminist statement Woman's Work, Nude Last Supper, and Defacing Art Last Supper.
How would a jury find, however?
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