Do You Expect Me to Talk? No, Mister Bond, I Expect You to Dance!

Stephen Carlisle July 16, 2015

An all singing, all dancing James Bond? As far-fetched as it may sound, on June 30, 2015, Merry Saltzman, daughter of the late Bond film producer Harry Saltzman, announced that she was going to be staging a James Bond musical, either on Broadway or Las Vegas. ¹ My reaction was probably shared by the vast majority of Bond fans around the world…please do not do this!

But make no mistake, she did not get the rights by way of her late father. Harry Saltzman sold his share of the Bond empire to United Artists in 1975. ² Immediately after the news of the musical Bond broke, Danjaq LLC (who controls Eon Productions and the Bond film franchise) scoffed at the whole notion. As posted on the official James bond website:

“Danjaq LLC and Metro-Goldwyn-Mayer Studios Inc. confirm they have not licensed any rights to Merry Saltzman or her production company to create a James Bond musical. Danjaq and MGM jointly control all live stage rights in the Bond franchise, and therefore no James Bond stage show may be produced without their permission.” ³

So how does she propose to proceed? Simple. She contends that her musical is a “parody” of James Bond and is thus permissible. As reported by Playbill, Merry Saltzman contends:

“Eon, Danjaq, and MGM et al’s statements are accurate as far as they go. Placeholder Productions’ and my statements are also accurate. Placeholder did not claim to have purchased rights to a stage production from Eon et al (nor did we intend to imply we had).

“Placeholder did (and did claim to) purchase rights to a James Bond musical parody written by Dave Clarke with music and lyrics by Jay Henry Weisz.

“The key word here is ‘parody.’ Parody, the courts have repeatedly upheld, is fully protected under the fair use principle of the US Copyright Act of 1976 and, as such, does not require permission from the owners of the intellectual property being parodied. We are producing a parody, no permissive rights are required from Eon, Danjaq, MGM et al to produce our show; it will not infringe on their intellectual property. James Bond: The Musical will go on as planned.” ⁴

Unfortunately for Ms. Saltzman, the law is far from clear on this point. According to the Supreme Court of the United States:

“Like a book review quoting the copyrighted material criticized, parody may or may not be fair use, and petitioners’ suggestion that any parodic use is presumptively fair has no more justification in law or fact than the equally hopeful claim that any use for news reporting should be presumed fair.” ⁵

Certainly, the claim of being a James Bond “parody” was not a winning argument for the American Honda corporation in litigation brought by the Bond producers over Honda’s “James Bond lite” commercial for their Honda Del Sol automobile. ⁶ The Court dismissed this defense and entered a preliminary injunction against them. If interested, you can view the commercial here: ⁷

Without a doubt, no one has taken more comedic shots at James Bond than the Austin Powers movies. The website Universal Exports has a rather detailed list of the 61 different Bond references in the Austin Powers series. ⁸ (N.B. as all Bond fans know, Universal Exports is the company Bond claims to work for when on assignment)

Yet even then, the Bond producers felt a line had been crossed with the third Powers movie “Goldmember.”

“MGM and Danjaq, …obtained a cease-and-desist order from the Motion Picture Association of America (MPAA) arbitration panel on the grounds that New Line was attempting to trade on the James Bond franchise without authorization. The matter went to arbitration and the film was known briefly as ‘The third installment of Austin Powers’ until the matter was settled on 11 April 2002. MGM agreed that New Line could use the original Goldmember title on condition that it had approval of any future titles that parodied existing Bond titles.” ⁹

And even though not a parody, the Bond producers filed a lawsuit against Universal over the film Section 6, that they felt poached on their territory. ¹⁰ What was unusual was that the suit was filed just on the basis of the screenplay, and not on the finished film. ¹¹ The case was later settled.

Based upon history, the Bond producers will be more than ready to file a lawsuit against Merry Saltzman. So what is the legal standard for whether a parody infringes upon the original? Obviously the parody has to make some use of the protected material, or else the audience will have no idea what is being sent up. Not surprisingly, the answer is “it depends.” The Supreme Court stated:

“The fact that parody can claim legitimacy for some appropriation does not, of course, tell either parodist or judge much about where to draw the line… [t]he Act has no hint of an evidentiary preference for parodists over their victims, and no workable presumption for parody could take account of the fact that parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and nonparodic elements. Accordingly parody, like any other use, has to work its way through the relevant factors [of fair use], and be judged case by case, in light of the ends of the copyright law.” ¹²

“This is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot free. In parody, as in news reporting, [citation omitted] context is everything.” ¹³

The Judge in the American Honda case had this to say:

“[T]he Court must look to the quantitative and qualitative extent of the copying involved. A parodist may appropriate only that amount of the original necessary to achieve his or her purpose. [citation omitted] The amount that may be used diminishes the less the purpose is to critique the original and the more that the parody serves as a substitute for the original.”

So, in other words, the parodist may borrow only the material sufficient to insure the audience gets the joke and no more. Obviously, the Judge thought the Honda Del Sol commercial went over the line, and ruled accordingly.

We do know that the musical Merry Saltzman is planning to present borrows not only the character of Bond, but “several Bond villains” as well. ¹⁴ Will this be too much? Will the inclusion of “several” Bond villains be allowed where one or two would be sufficient? Does this musical production go so far as to “substitute for the original?” Certainly, the Bonds of the Daniel Craig era have been serious, somber affairs, but the Bonds of the Roger Moore era leaned so heavily on humor that it could easily be said that they were themselves parodies of the Bond character. If the Austin Powers films made 61 separate references to the Bond films, resulting in only one, very specific, legal challenge, there could be a lot of wiggle room here. In any event, hard analysis is difficult at this point since no copy of the proposed play has been leaked.

Two more factors will come into consideration. Will the play impermissibly adopt the “total concept and feel” of the Bond movies as the Judge ruled in American Honda? And we have not even begun to consider whether the new Bond “parody musical” might be found to be a “transformative use” by a friendly court within the jurisdiction of the Second Circuit Court of Appeals.

All that remains is to see who fires the first shot over the man with a “license to kill.”