Spice DAO’s “DUNE” IP Blunder – Ep. 41 [Podcast]

Summary:

Spice DAO, a crowdfunded group of cyber artists, accomplished their mission to buy a copy of a legendary movie manuscript based on the famous Frank Herbert Novel, Dune. Now, they plan to burn it, create a series based on it, and open the floodgates for fan fiction artists to do what they will with it. The only problem? Well, there’s some “Stuff” that they should probably know about Intellectual property.

Transcript: 

Raymond Guarnieri:

Spiced DAO, a crowdfunded group of cyber artists, accomplished their mission to buy a copy of a legendary movie manuscript based on the famous Frank Herbert novel Dune. Now they plan to burn it, create a series based on it and open the floodgates for fan fiction artists to do what they will with it. The only problem, well, there’s some stuff that they should probably know about intellectual property. Good news, we have special guests, Jan-Willem Goedmakers, with us, and this is Stuff You Should Know About IP.

Raymond Guarnieri:

Stuff You Should Know About IP is the most mind-blowing, knock-your-socks-off podcast about intellectual property in the known universe. So do us a favor, hit that like button, leave us a comment and share it with your coworkers, your sister, and your family pet. Today’s episode of Stuff You Should Know About IP is brought to you by the Trademark Lawyer Magazine. If you want to say up-to-date with everything that’s going on in the world of IP and trademarks, go to www.trademarklawyermagazine.com. Each issue is free to read for up to eight weeks. That’s trademarklawyermagazine.com for global news in the world of trademarks. All right, Tom, Jan-Willem, let’s talk about Dune, one of my favorite topics.

Thomas Colson:

Yeah. Dune is perfect for you, Ray because I have not met someone who loves Dune as much as you yet.

Raymond Guarnieri:

Well, there’s people who love it way more than I do.

Jan-Willem Goedmakers:

Oh, really?

Thomas Colson:

Among the people I know, you are an enthusiast. But Ray, you tell us about Dune. Yeah, you tell us about Dune.

Jan-Willem Goedmakers:

Yeah. Ray, I can tell you that the only thing I know about Dune is that it is a book, it’s written by Frank Herbert.

Raymond Guarnieri:

Correct?

Jan-Willem Goedmakers:

Because I have heard about that and I love books, but I do not read any science fiction. So I am aware of the existence of the book, and I’m aware of the author, but I haven’t got it. So you can-

Raymond Guarnieri:

It’s actually the only science fiction book I’ve ever read.

Thomas Colson:

Really?

Jan-Willem Goedmakers:

So you’re saying I should try it.

Raymond Guarnieri:

Yeah. Well, I mean, it depends. If you’ve never read science fiction, maybe, but if you’ve read it and you hate it, I don’t know. I don’t know.

Jan-Willem Goedmakers:

I have got some science fiction or fantasy. But, for example, The Lord of the Rings is something that, to me, is just painful to read. It hurts my brain.

Thomas Colson:

Jan-Willem, that’s why God created movies.

Jan-Willem Goedmakers:

Okay. I also watched the movies, and I fell asleep.

Thomas Colson:

You did?

Raymond Guarnieri:

You might like The Lord of the Rings movies. The Dune movies… So I’ll go into the… I’ll give you the quick history because there’s actually two movies that have been made on Dune. But just to go back to beginning, Frank Herbert wrote this book called Dune, 1965 it was released, and it was a big commercial success. And science fiction… I mean, I’m sure there’s a lot of debate about this, but a lot of people say that it’s the greatest science fiction novel ever written. And he would go on to write five sequels to the original novel. And then in the last 50 years or so, there’s been a total of around 36 books, some graphic novels, and I think an animated series, two movies, and then Jodorowsky’s Dune, which was never actually made.

Raymond Guarnieri:

So there’s a huge amount of literature and media related to the Dune canon. So obviously, a lot of people really like it. Now, the Dune story itself, I find it really interesting. So it centers around a planet called Arrakis, and it’s known as Dune. And Dune is the spice planet. There’s this stuff on the planet called spice. And it’s kind of a mysterious substance that allows… It changes your perception of space and time. It’s like a mind-altering drug and it’s-

Jan-Willem Goedmakers:

So it’s basically cannabis?

Raymond Guarnieri:

It’s like if you smoked all the cannabis that ever existed all at once.

Jan-Willem Goedmakers:

Uh-huh (affirmative). Okay.

Raymond Guarnieri:

And it gives humans the ability… And one of the things I love about Dune is there’s no aliens in the universe. It’s just humanity, the only intelligent life. So we’re 20,000 years into the future of humanity, and there’s no aliens, but there are these beings called the Space Guild Navigators. And over the last 10,000 years or something like that, they’ve been consuming this substance spice because it gives them the ability to fold the space and time and travel anywhere in the known universe instantly.

Thomas Colson:

Okay. Cannabis cannot do that.

Raymond Guarnieri:

Cannabis… Well-

Jan-Willem Goedmakers:

Well, it can give you the impression that it does that.

Raymond Guarnieri:

I’m sure it can’t do that.

Thomas Colson:

Right. Right. Yeah. You might have to-

Jan-Willem Goedmakers:

Well, I was thinking, I mean, being Dutch and stuff that you were describing the Netherlands, but that’s…

Raymond Guarnieri:

Well, I mean, maybe ayahuasca could do that. I don’t know. I’ve never done ayahuasca.

Jan-Willem Goedmakers:

I don’t do drugs myself, so I don’t really know.

Raymond Guarnieri:

So the spice, right? A couple other things that I think are really cool about the book is there’s elements of religion and politics woven into the story. And the characters all have really great character arcs. Paul Atreides, the main character, he comes from this royal family of this one planet. And his mother is part of this sisterhood of like… They’re almost like nuns, but they’re kind of like witches who are trying to breed a superhuman who can change the whole political structure of the entire universe. And so, Paul was not supposed to be born. His mother was supposed to give birth to a girl so that they could connect the family lines between other big houses, but she gave birth to a son. They go to Dune, and then the spice on Dune starts changing him. And I don’t want to ruin the story too much, but he may or may not be this super-being. Right? So that’s the background of the story itself. Now, David Lynch made a movie in the ’80s based on Dune, and it sucked. It was-

Thomas Colson:

Wasn’t Sting in it?

Raymond Guarnieri:

Was it Sting? Yeah, I think it was… Sting was in it.

Jan-Willem Goedmakers:

Oh, that’s why it sucked.

Raymond Guarnieri:

It was okay. So as a fan of the book, and I saw it in the early 2000s, right? So I wasn’t influenced by what the popular opinion was of it at the time. So I actually really loved it because I read the book, and then I got to see the characters come to life visually in a way that I couldn’t just do in my own mind. So that’s why I liked it. And I’m sure there’s lots of other Dune book fans that feel the same way. And then others who hate it. But before that, there was this guy named Jodorowsky, and he was this avant-garde filmmaker. He made some really bizarre films that looked really visually beautiful. This was in the ’60s.

Raymond Guarnieri:

And for some strange reason, his movies became a cult success and a commercial success. And there were some producers in France that were willing to back him on his next movie. And they said, “Whatever you want to do.” And he said “Dune,” and this was around the time the book had come out, and it was really popular. And when he said that he actually hadn’t even read the book, he just said it. And he set on, on this mission to create the Dune movie. And he was a really creative guy. And there’s actually a documentary about Jodorowsky, called the Jodorowsky’s Dune. And he brought in these great graphic artists and set builders, set modelers, and they created… Basically, they had the money for the pre-production, the development, not pre-production, but the development of the movie. And then they created this book of all these drawings, characters, costume sets. He storyboarded every frame of the movie from start to finish. I mean, every scene he had visualized. And the documentary is really good if you’re into movies and you’re into Dune.

Raymond Guarnieri:

And so he made this big book, but Hollywood just didn’t trust him because he was kind of crazy. And if you watch the documentary, you’ll probably see what I mean. Crazy could have worked out, but too big of a risk for Hollywood, who really only… They care about the numbers quite a bit.

Jan-Willem Goedmakers:

Yeah.

Thomas Colson:

And that was… At the time, that was $15 million movie, which would have present value of around a hundred million.

Raymond Guarnieri:

Yeah. And he had only made two movies before that with much smaller budgets that were commercially successful, but kind of a big leap to go from an avant-garde filmmaker to big blockbuster Hollywood filmmaker.

Thomas Colson:

Of a 14 hour film, which is what he had expected. Right?

Raymond Guarnieri:

Right. And that was the other problem. He wanted… He was saying things like, “Oh, it’s going to be 10 hours, 14 hours.” And even as a trilogy, that would be still kind of long.

Thomas Colson:

Yeah.

Raymond Guarnieri:

So they were… He scared them away, I think.

Jan-Willem Goedmakers:

Mm-hmm (affirmative).

Raymond Guarnieri:

Now hindsight, it’s 2020, because last year the Denis Villeneuve, I think it’s how you pronounce his name? Or Denis Villeneuve, he made a movie version of Dune. Just came out last November, and I’ve already seen it three times.

Thomas Colson:

You have?

Jan-Willem Goedmakers:

Wow.

Raymond Guarnieri:

I have. But because it was so good. It was so good. I mean, it has its critics, but as a big fan of the book, way better than David Lynch’s version. And to be fair, he’s got a lot more technological toys to play with to make it really come to life visually. And so far, the box office on that film, as of a couple weeks ago, is almost $400 million, global box.

Thomas Colson:

Wow.

Jan-Willem Goedmakers:

That’s so fast.

Raymond Guarnieri:

And then, of course, you’re streaming Blu-ray, merchandise, and all that. And I even bought a copy of the book years ago, but I bought three more copies of the book. So the book sales have gone up. They’re giving them away as gifts to people who I know like to read and all that, plus all the other books. I mean, the franchise has got to be some money now. So that’s the backstory. Now in comes Spice DAO. And Tom, you did the background on Spice DAO, so you could probably tell what… All I know is these people made a really what seems to be an obvious mistake and a kind of embarrassing mistake.

Thomas Colson:

Yeah, absolutely. So just to give you a little bit of background on Spice DAO. So there’s these decentralized autonomous organizations out there, and they are essentially groups of a lot of times crypto that are trying to buy stuff. Like there’s a DAO right now that’s trying to buy an NBA team. And this DAO, Spice DAO, is founded by a guy whose nickname is Soby. And Soby did pretty well in the Ethereum game, I think. And anyway, his vision was to do great things with this book of the Jodorowsky’s Bible. Right? It’s like this… You know how you’ve described it? Every frame, everything-

Raymond Guarnieri:

In every storyboard.

Thomas Colson:

It’s all in this book. It’s all in this book.

Raymond Guarnieri:

Yeah.

Thomas Colson:

Oh, yeah. So it’s this thick book, and it’s got… There’s maybe 10 or 20 of them in the world. And every once in a while, there will be a Christie’s auction, and they’ll sell for like 25 or €30,000. Well, in this case, this guy Soby raised €650,000 to basically buy this book. One of these books came up. One of these Jodorowsky Bibles came up, and there were two basic problems with it. One, Christie’s did not accept Ethereum as a payment mechanism, and two, it wasn’t enough money. So he ended up putting money out of his own pocket in to buy it for €2.66 million, and he did not realize what he was buying. And just to give you a flavor of it, he wanted to do seven things with this book. Right?

Thomas Colson:

First, he wanted to issue a collection of NFTs that are technically innovative and culturally disruptive. There was an article where he said he has never had an opportunity to be at the cultural decision table, but now he is. So that’s one. Two, he wanted to convert the book into JPEGs. Then he wanted to burn the book as a marketing stunt. Then he wanted to create a video of burning the book and selling that as an NFT. Then he wanted to make the book public to the extent permitted by law. Then he wanted to produce an original animated series inspired by the book and sell it to a streaming service. And then he wanted to do something he refers to as support derivative projects from the key community. So that’s what he had in mind from buying a book.

Thomas Colson:

Now, as we know, from being IP people, he didn’t buy the rights to Dune. He didn’t buy the copyrights. He just bought a book. So the question is, can he do any of those things? Now coincidentally, for the past eight hours of this day, I’ve been teaching a class in Switzerland, remotely from Florida via Zoom in my hotel room here. And I’ve been basically teaching IP fundamentals to EPFL students, which is an executive MBA program there. And I could not control myself. I had to bring up this Dune scenario. Right? And I basically asked the students this, “Of the seven things that they want to do, which are they allowed to do?”

Thomas Colson:

So, and I’ll ask Jan-Willem. Jan-Willem, first thing they want to do. You’re the lawyer for the Spice DAO. They want to issue a collection of NFTs that are technically innovative and culturally disruptive. Now you’ve become a bit of an NFT guy in the past 48 hours. Right?

Jan-Willem Goedmakers:

Well, I’ve looked into it, and I have to admit that I think that’s probably at the moment more that I don’t understand and that I actually do.

Thomas Colson:

Well, you’re not alone.

Raymond Guarnieri:

That’s how I feel.

Jan-Willem Goedmakers:

And I will be very upfront about that because my understanding is that NFT it is something which uses blockchain and to create a non-fungible token, which means it is something… A piece of software which cannot be forged. So once you have it, it is very easy to check if anybody has fiddled with it and changed even one bit in the piece of software. So that is good in terms of authenticity. Now, when I watched your previous video on NFTs, which I recommend to everybody, where you were talking about NFTs, and for example, a painting by Monet. And that got me thinking because an NFT is not the same as a painting in the same way as what we’re talking about now. NFT is something in terms of software. And that’s not the same as a book because a book you can burn, a piece of software you can’t burn. Well, you can crash the server it’s on, but you cannot burn the actual code.

Raymond Guarnieri:

Right.

Jan-Willem Goedmakers:

So if I look at the analogy with the Monet, if I buy a Monet, I have a painting by a famous painter. And obviously, it’s a matter of taste if you like Monet. I happen to like him, but not everybody does. I remember you not being too impressed, Tom, which is fine. And this is the interesting part about art, a painting by Monet, what is very important is that this painting actually has to be painted by Monet. So there has to be… The buyer needs to be sure that this painter was not paid by his housekeeper, who had sort of taken it up as a hobby, but that Monet actually put his brush to the canvas and created this painting himself.

Raymond Guarnieri:

Right.

Jan-Willem Goedmakers:

And now Monet has been dead for probably about a hundred years or so. I think 80 to a hundred years. He lived in the 19th century. And so this painting could have changed hands a lot of times. And what is important in order to establish that a painting is authentic is what in the art world they call provenance. And provenance is, where does it come from? So if a painting changes hands, there is also paperwork that goes with it.

Raymond Guarnieri:

Mm-hmm (affirmative).

Jan-Willem Goedmakers:

Yeah? And when you buy… If you were to buy a painting now from, let’s say, Christie’s or Sotheby’s or one of the big auction houses, you don’t just get the painting. You also get a whole bunch of paperwork and the certificate of authenticity.

Thomas Colson:

Yeah.

Raymond Guarnieri:

Yeah.

Thomas Colson:

Now, and this is what made me think about these NFTs, because I think, and you can correct me if I’m wrong, that in this particular case, the NFT is not the painting, but it’s the certificate of authenticity. And the certificate of authenticity is always given off by the current owner of the painting because he will say, I bought this painting from person X, done and done, or from Christie’s or… Yeah, this is the paperwork that came with it. And I certify that the paperwork that came with it is the actual paperwork and this painting, therefore, is the real thing.

Raymond Guarnieri:

Right.

Thomas Colson:

Yes.

Jan-Willem Goedmakers:

So that is where I see potentially that an NFT could be useful. And in particular, for example, if it is a… But you could also use that for some digital work of art.

Thomas Colson:

Yeah.

Jan-Willem Goedmakers:

So that I can see. The thing that I am sort of completely missing in this whole discussion is that these guys have a book, which they want to burn, and then they want to create NFTs.

Thomas Colson:

Well, they’re probably going to have to create the NFTs.

Jan-Willem Goedmakers:

What those would be, I have no idea.

Thomas Colson:

Well, keep in mind. Here’s what I’m thinking. So they want to do a number of things. They want to create NFTs. They say they want to create JPEGs. Right? So imagine this book-

Jan-Willem Goedmakers:

And that’s not reliable.

Thomas Colson:

All right. Imagine this book, though, is filled with a whole bunch of images. And if they did own the rights, not just the book, but the rights, they could create a whole bunch of NFTs of every page or every drawing and then sell those off individually. But like you said, they don’t own the IP rights. They just own the book. So they can’t create JPEGs. They cannot really create-

Jan-Willem Goedmakers:

Well, only for their own use usually they could. If you say, I want to look at the actual pages, and I have only one book, but look, I paid 2.6 million for this thing. So I want to put it in the safe. Then I think you are generally allowed to create JPEGs for yourself, which you alone can then watch.

Thomas Colson:

Well, technically speaking, you cannot make copies. Copyrights give you the right to prevent other people from making copies. So technically speaking, yeah, you paid $2.6 million, tough luck. But who’s going to pay-

Jan-Willem Goedmakers:

Well, that’s US, though. But I think in Europe there is also something which is called fair use and you are allowed to make a copy for yourself if you-

Thomas Colson:

Yeah. And no one would care, right?

Jan-Willem Goedmakers:

No.

Thomas Colson:

No one would care. But if you start selling off NFTs with those JPEGs-

Jan-Willem Goedmakers:

That’s a different story. You are not allowed to do that.

Thomas Colson:

That’s a different story. Now, the one thing they… So I was talking to this EPFL group today, and the question was, can they burn the book?

Jan-Willem Goedmakers:

Yes.

Raymond Guarnieri:

Yeah.

Thomas Colson:

Yeah. They own it. They can burn it.

Jan-Willem Goedmakers:

They own it. It’s their book.

Thomas Colson:

Okay. Now can they videotape the burning, create a digital representation and then create an NFT and sell the NFT? Can they do that?

Jan-Willem Goedmakers:

Well, the question is what you mean by digital representation. I think if you would make a big pile of wood, set fire to it, throw the book on it, and videotape the whole thing, that would probably be allowed.

Thomas Colson:

Okay. Now I originally thought that till I started talking about it, but what if you could see the Dune cover in your digital representation?

Jan-Willem Goedmakers:

Yeah. That’s pretty wrong.

Thomas Colson:

Right. Jodorowsky’s cover is kind of… It’s unique. It’s distinctive. He created it. Now you’ve created a derivative work from a copyrighted work. So I don’t know. You can certainly burn it. You could certainly, well, you could probably videotape it. If you didn’t have the book, I mean, you had like a book, but you couldn’t see anything of it. You said, “Oh, this is the Dune book by Jodorowsky’s,” and you threw it in the fire, then, yes. But arguably, you can’t create a reproduction of any of the pieces of it. Right? So that’s questionable. They want to burn it. Okay. Then they want to videotape the burning and sell it as NFT. Maybe. But depends, I guess, what the definition is of what copyrights are, right? But then they want to do other stuff.

Jan-Willem Goedmakers:

I think it’s malpractice because nowadays in our Zoom times, you that particularly politicians, when they’re interviewed on TV, they always have a big bookshelf behind them, including with lots of books that they think make them look intellectual.

Thomas Colson:

Right. That they’ve never read. Right.

Jan-Willem Goedmakers:

Not necessarily.

Raymond Guarnieri:

I’m feeling a little insecure right now.

Thomas Colson:

Look at Ray.

Jan-Willem Goedmakers:

Yeah. Well, Ray, you’re off the hook here because your bookcase is so far away that you can’t actually read the titles.

Raymond Guarnieri:

Yeah, exactly. It’s just all MUD magazine.

Thomas Colson:

So here’s the other thing they want to do, they want to make it available to the public and the way they put it was, they want to make the book public to the extent permitted by law. So I’m having this discussion with these guys at EPFL today, and I said, “Well, you can sell the book. Right? You can resell it.” And then one of the guys objected. He said, “Yeah, you could resell it, but you can’t, for example, rent it. You can’t let people come and read it and give you $20 to read it.” And I thought, “Why not? You own it. You can let them pay to read.”

Jan-Willem Goedmakers:

No, it’s not true because I know that for libraries, for example, they buy books, but there are some agreements that if you want to run something out that you have to pay royalties, which is different from when you have actually sold the book.

Thomas Colson:

Yeah. And then I’m wondering, though, the copyrights. Copyrights, you could prevent people from making copies, which you’re not doing, by renting it out. They could prevent you from making derivative works, which you’re not doing, but maybe they can prevent you from… Well, here’s a good example the guy gave me today, which I thought was interesting. He said, “Well if you buy a CD or you download something from Apple Music, you can’t then go out to a stadium and have a concert and sell tickets to a concert where you’re playing your CD.” And it’s kind of like that with renting the book. And I thought by conclusion was, I don’t know the answer to that question. Can you-

Jan-Willem Goedmakers:

I think it is… In Europe, at least there is… I know that libraries pay authors, libraries buy the book, but they have to pay authors royalties every year, based on the number of times the book has been rented out.

Thomas Colson:

Yeah. That’s interesting.

Jan-Willem Goedmakers:

In fact, I did read a column of an author once who said that he got this royalty check, and it was two euros and 64 cents. And I think that was over the last three years.

Thomas Colson:

So he couldn’t even go to Chipotle?

Raymond Guarnieri:

It’s hardly worth the paper it’s written on in the posting.

Thomas Colson:

Right. He couldn’t even get an Impossible Burger.

Jan-Willem Goedmakers:

No, no, no, no. He wouldn’t be able to do that now.

Thomas Colson:

Maybe an Incredible Burger, but not an Impossible Burger. So then the other thing they want to do is, let’s see, produce an original animated series inspired by the book and sell it to a streaming service. What do you think of that, Jan-Willem? Yay or nay?

Jan-Willem Goedmakers:

Probably not.

Thomas Colson:

What do you think, Ray?

Jan-Willem Goedmakers:

Well, inspired is not very well defined.

Thomas Colson:

It’s a funny word.

Raymond Guarnieri:

Yeah.

Jan-Willem Goedmakers:

Yeah. Because if it is inspired and it would be… It would only be inspired, but it would be completely different. For example, it would also be about a planet. Yeah.

Thomas Colson:

In the future. But not even characters.

Jan-Willem Goedmakers:

But if it were to have the same characters, you would have a problem.

Thomas Colson:

Then you got a problem. Yeah. Now you got a problem.

Raymond Guarnieri:

So here’s, here’s a couple interesting things that might change up this discussion a little bit.

Thomas Colson:

Okay, Ray.

Raymond Guarnieri:

This is from all information that I learned from watching the Jodorowsky’s Dune documentary. So apparently, Jodorowsky… Because they had purchased the rights, it was owned by Hollywood too. The Dune-

Thomas Colson:

Yeah. The film rights.

Raymond Guarnieri:

The film rights. So apparently, he changed quite a bit from the original novel. Now a lot of the things that I already mentioned, the spice, the planet Dune, and all that, the core of it was there, but he changed some of the characters up a little bit, but most importantly, he changed the ending.

Thomas Colson:

Oh, really?

Raymond Guarnieri:

He changed the ending so significantly that there wouldn’t really be room to do any additional films based upon any of the sequel books because he changed the ending to the main character dying. And his consciousness enters the consciousness of everyone else in the universe. And the movie ends with everyone saying, “I am Paul.” But it’s in Paul’s voice. And that is nothing like the true ending. The true ending is… I won’t give it away for those who want to read the book.

Thomas Colson:

Yeah. Don’t give it away because I’m still going to check it out.

Raymond Guarnieri:

But it was interesting. Now here’s another interesting thing that could change this. So the documentary does really good side-by-side comparisons of images from the Jodorowsky’s Bible manuscript and almost every science fiction movie that’s ever been made since the late 1960s, including Star Wars, Star Trek, and so on. And going back a little bit when he was shopping this movie around in Hollywood, trying to get the money to make it, every big studio, every big player in Hollywood got a copy of this book.

Raymond Guarnieri:

Now, maybe that only meant there was only like 50 books, but still, a lot of powerful Hollywood people had a copy of this book. And a lot of those people are the people who were backing the creation of all the scientific movies you’ve ever seen, The Avengers, Marvel, all those movies. And things that were in the illustrations that he created in partnership with all the artists that he brought in are really evident in some of these movies. So they imply really not so subtly that this book has influenced the imagery and even certain story elements that have arisen in a lot of really famous science fiction movies throughout the years. It’s sort of like you can trace back the source of all the really creative ideas that worked in these movies. You can trace that. That’s why it’s like the Bible of the science fiction. Right?

Thomas Colson:

The movie Bible. Yeah.

Raymond Guarnieri:

Right.

Jan-Willem Goedmakers:

Yeah.

Raymond Guarnieri:

So is that allowed?

Thomas Colson:

Yeah, that’s what I mean.

Jan-Willem Goedmakers:

That’s allowed.

Thomas Colson:

That’s why I like the way Jan-Willem put it. The word, it inspired, inspired by, is interesting. But if you took all the characters from Dune and you started making movies… It’s kind of like the Star Trek movies, right? You got the Star Trek; you got Deep Space Nine and Voyager. They don’t have James Kirk in them, but they have the whole… They still have Klingons and Romulans, and they talk about Kirk, and they’re clearly derivative works of Star Trek. But is it a derivative work if you say, “I’m going to have a planet that earth occupies 20,000 years from now and all kinds of cool stuff happens. But there’s no spice, and there’s no Emperor of the Universe, and Mick Jagger is not there, and David Teradyne is not there, and Salvador Dalí is not there.” I know, that’s the question. But I think they would have hard time doing what they want to do, which is to create an animated series of Dune. Right?

Jan-Willem Goedmakers:

Yeah. I think that would be… Because when you say it’s inspired by, if people… Let’s say people in the know would recognize references, that is completely different from something being a knockoff.

Thomas Colson:

Right. Yeah.

Jan-Willem Goedmakers:

And I think the courts… If they were to be sued, the courts would say, “Are people going to think that this is coming from the same author or not? And is there a likelihood of confusion?” I don’t know if you are aware, but some Russians made a knockoff of Harry Potter, and what they did-

Thomas Colson:

I wasn’t aware.

Jan-Willem Goedmakers:

And I think actually it also went to a Dutch course for some reason. And they’re quite good at doing those kind of things quickly because they wanted to have a translation of the Russian book in Dutch. And the books are essentially about a girl wizard who is an orphan. Yeah. So, a lot of the story is the same, but what they did, they changed some genders around, and they changed the names, and then they said, no, that’s… And they tried to give as a defense that it was a parody.

Thomas Colson:

Oh yeah, yeah. Yeah. Right.

Jan-Willem Goedmakers:

Because a parody, you can say, “I’m making a parody on something,” because that is a completely… That has a totally different atmosphere, and as such, would be more or less inspired, but completely different.

Raymond Guarnieri:

Right.

Thomas Colson:

Right. Right.

Jan-Willem Goedmakers:

And that a parody would be allowed.

Thomas Colson:

Except, usually, for a parody to be allowed, it has to be known that it’s a parody.

Jan-Willem Goedmakers:

Yes, exactly.

Thomas Colson:

And not another dramatic series. Right?

Jan-Willem Goedmakers:

Exactly. And it would have to be completely clear that it is not just another book in the series.

Raymond Guarnieri:

Right.

Thomas Colson:

Right. Yeah. Yeah.

Jan-Willem Goedmakers:

It has to be completely… And there should be no confusion possible. And the courts didn’t buy the argument about the parody, by the way. So it got banned.

Thomas Colson:

Well, with respect to our friends at Spice DAO, I think Ray’s comment that he made is a good way to end our segment, which was… Remember what you said, your favorite part of the article was?

Raymond Guarnieri:

Who’s going to tell them?

Thomas Colson:

Yeah. Who’s going to tell them?

Raymond Guarnieri:

I mean, what are they going to do next? They’re out. How many million euros? I mean.

Thomas Colson:

2.66 million. Yeah. Air came out of Soby’s pocket. So he might not get reimbursed.

Raymond Guarnieri:

That’s a big punch in the gut. Now, one thing though, and this is a serious question now, does Jodorowsky… And let’s assume that he still somehow has the rights to the book that he created, the film rights, or something. Okay, this is where it gets confusing because there’s the film rights, which clearly now have transferred patents to Denis Villeneuve, who made last year’s movie, but does Jodorowsky have any rights over his creations still? And can he transfer those? And the reason I ask is if you watch the documentary, he’s a super creative guy, clearly a brilliant artist. I think he’d probably love this.

Jan-Willem Goedmakers:

But is he still alive?

Thomas Colson:

Well, let’s put it this way, you can get a copyright on a derivative work, which is infringing another copyright. So Jodorowsky, if his work, even if it’s infringing the original Dune, it’s still his own derivative work, which has copyright protection. So your question, though, is, can Jodorowsky give up the rights to Dune and around Frank Herbert?

Raymond Guarnieri:

To his version of it.

Thomas Colson:

Yeah, right. To his version of Dune.

Raymond Guarnieri:

His derivative.

Thomas Colson:

Which is a derivative work, which would infringe if he didn’t have the rights to… And I’m sure his license expired, the film rights expired. It was probably a copyright of license of limited duration. So he probably doesn’t have rights anymore, but his book still has copyrights. So he might be able to sue the Spice DAO for violating his copyrights in his own book if they try to create an animated series out of his book. But Frank Herbert might also be able to sue for violating the copyrights of the original Dune series.

Jan-Willem Goedmakers:

Well, I don’t think Frank Herbert is going to sue, and I think it’s going to be his heirs.

Thomas Colson:

Yeah. He’s dead. Right. Yeah. He’s dead. Right. But copyrights last a long time.

Jan-Willem Goedmakers:

70 years after the death of the author.

Thomas Colson:

Which is crazy.

Jan-Willem Goedmakers:

Yeah. But that’s interesting because Jodorowsky is apparently still alive, but he was born in 1926. So he would now be 96 or so.

Thomas Colson:

But he’s still alive.

Jan-Willem Goedmakers:

He’s still alive.

Thomas Colson:

Which means he’s still… So it’s still plus 70.

Jan-Willem Goedmakers:

Yeah. And the issue with this is, of course, is that when he created his book, Jodorowsky did, so at some point in time, he had an interest in actually creating this film. I mean, it never got off the ground, but he might be okay with somebody else trying it if he still has the rights, of course.

Raymond Guarnieri:

Seeing is how the failure of his version of Dune meant that he literally never made another movie again. He made two movies earlier in his career. He was in his early thirties. He made them in his late twenties, early thirties. They were a success. He had the development of Dune, Hollywood shut him down, and then he just never made a movie.

Thomas Colson:

And then he became a car sales.

Raymond Guarnieri:

Well, what they did was they made a bunch of… The cool thing in this documentary is he got a bunch of really great artists that created a team. And they all loved Jodorowsky. They thought he was kind of crazy and weird, but he was inspirational. And all of them have gone on to have great careers in their fields.

Thomas Colson:

Wow.

Raymond Guarnieri:

And he kept working with some of them, and they made graphic novels and things like that. So he was still creative or active as an artist, but he never made a movie again.

Thomas Colson:

Wow.

Raymond Guarnieri:

That just goes to show you, if you could tell by the end of the film, it was like just the knife going through his heart.

Thomas Colson:

And he’s still alive. He’s still suffering.

Raymond Guarnieri:

And he’s got a really funny side too, where he talks about watching David Lynch’s version of the film, and he was… Going into it, he was anxious about it because it was like he liked David Lynch. He knew him personally. But when he watched the movie, he was like, “Oh, it’s terrible.” And he was so happy that it was terrible. And the look on his face is just great.

Thomas Colson:

But you liked it.

Raymond Guarnieri:

I did. But you know, I’m a geek, so-

Thomas Colson:

Yeah.

Jan-Willem Goedmakers:

Yeah.

Thomas Colson:

Well, Ray, thanks for bringing this topic up.

Raymond Guarnieri:

Everyone, if you enjoyed watching this episode of the podcast, and it’s one of our longer episodes, and I’m not ashamed about that because I love Dune. But if you enjoyed it as much as we did, especially me, please don’t forget. Leave us a comment. Let us know what you think about Tom’s seven questions and share this. Again, remember the most important person in this podcast is you. you have the power. All right. See you.