Why the Law Appears to Favor Alabama in Budding Barbershop Battle With LeBron
LeBron James and Nick Saban are unlikely adversaries, but James’s media company, Uninterrupted, and the University of Alabama have become foes in an intellectual property dispute, centering on Alabama’s “Shop Talk” web series and whether it has unlawfully copied protectable elements of Uninterrupted’s web series “The Shop.”
As reported by ESPN’s Dave McMenamin on Monday, representatives for Uninterrupted recently sent a notice of infringement letter to Alabama. The letter asserts, “Your continued exploitation of ‘Shop Talk’ infringes Uninterrupted’s copyright, trademark rights and other valuable intellectual property rights in ‘The Shop’ and significantly damages Uninterrupted’s commercial prospects for ‘The Shop’.”
The gist of Uninterrupted’s claim is that “Shop Talk” is so similar to “The Shop” that it breaks the law and damages Uninterrupted.
A 51-second trailer for Episode 1 of “Shop Talk” appeared about a week ago, and the entire 21-minute video is on YouTube. The trailer takes place at Bama Cuts, a newly opened barbershop located in Alabama’s Mal M. Moore Athletic Facility. The star of the trailer is Atlanta Falcons wide receiver Julio Jones, who played at Alabama from 2008 to 2010. Jones talks about hard work as two other former Alabama players, Chicago Bears safety Eddie Jackson and Washington Redskins linebacker Ryan Anderson, are having their haircut. They listen to Jones share his wisdom. About 20 seconds in, Saban appears on screen and jokes that he “has gotten soft around here in the last little bit.” The show begins with a center graphic “BAMA FOOTBALL SHOP TALK”. During the show there is a continuous graphic overlay in the bottom left of the screen with “BAMA CUTS” and a scissor pointed down.
In some regards, “Shop Talk” is very similar to “The Shop”. Consider a 30-minute episode of “The Shop” that was posted last year. The video is summarized as follows: “Barbershop talk is taken to the next level when Uninterrupted brings LeBron James, Draymond Green, 2 Chainz and their homies together to chop it up and debate music, culture and sports.” Both “Shop Talk” and “The Shop” share the setting of professional athletes seated in a barbershop engaging in unscripted conversation. The graphic overlay of “Shop Talk” is also reminiscent of that used in “The Shop”: in a 1 minute and 47 second trailer of Uninterrupted’s series, the center of the screen features the phrase “THE SHOP” with a scissor pointed up.
The ordinariness of barbershop small talk in movies and TV shows
At first glance, Uninterrupted’s contentions may seem absurd. As Andy Staples details in his #DearAndy mailbag column, the scene of guys sitting around a barbershop talking about life is hardly new. For his part, Saban on Wednesday ridiculed the insinuation that Alabama has stolen anything, noting, “There’s been at least 20 barbershop-type things I’ve seen.”
The record supports Staples and Saban. The barbershop banter bit has been played out in a number of movies and TV shows. It gave rise to several memorable scenes in the 1988 movie Coming to America, which starred Eddie Murphy and Arsenio Hall. It was also used in the 1993 movie Who’s the Man? (starring Dr. Dre and Ed Lover). And then there was the 2002 movie Barbershop, which starred Ice Cube and Cedric the Entertainer and revolved around banter in a barbershop. The success of Barbershop prompted two sequels—Barbershop 2: Back in Business and Barbershop: The Next Cut—as well as a TV series and spinoff film, Beauty Shop, which starred Queen Latifah.
One might go so far as to opine that the “talking off-the-cuff in a barbershop” format is almost a tired trope by this point. Neither Uninterrupted nor Alabama’s show is a pioneer in this space.
“Scènes à faire”: No one owns the barbershop setting
It should come as no surprise that Uninterrupted can’t “own” the barbershop setting for entertainment productions; no area of law would assign ownership to such a general concept. Copyright law, in fact, features a principle called “scènesà faire”, which is French for “scenes that must be done.” At its core, this principle instructs that certain story lines, plots, genres and cultural phenomena can’t be copyrighted into a fixed and tangible medium of expression. This is because they are too commonplace, if not outright essential, in certain productions.
Take buddy cop films. We’ve all seen them. They usually involve the pairing of two officers who initially don’t get along. As the plot develops, the officers bond, one saves the other’s life and by the end of the film, they are good friends. If this sounds like Lethal Weapon or Tango & Cash, or the new Netflix film Bright, it’s because it is. No buddy cop film owns the routine plot devices that appear in such films.
The U.S. Court of Appeals for the Second Circuit famously illustrated scènes à faire in the 1986 case Walker v. Time Life Films. The case featured a copyright infringement claim brought by a former New York City Police Department captain—Thomas Walker—who was assigned to the 41st precinct in the Bronx. Walker wrote a book about his experience in the 41st precinct titled Fort Apache, a nickname for the precinct.
Five years later, Time Life released a motion picture called Fort Apache, the Bronx. The movie had no relationship to the book or Walker. In fact, the movie featured a fictional account of a patrolman at Fort Apache. While the book and movie were different in many ways, Walker stressed their similarities. For instance, both the book and movie “begin with the murder of a black and a white policeman with a handgun at close range; both depict cockfights, drunks, stripped cars, prostitutes and rats.”
The Second Circuit acknowledged these similarities but deemed them outside the scope of copyright protection. Take the plot line of the police officer murders. Those were actual incidents—historical facts can’t be copyrighted. As to other shared plot elements in the book and movie, the court stressed, “drunks, prostitutes, vermin and derelict cars would appear in any realistic work about the work of policemen in the South Bronx ... [they] necessarily result from the choice of a setting or situation.”
Scènes à faire provides an advantage to Alabama in its dispute with Uninterrupted. Arguably, the roles played by both James and Jones “necessarily result” from a barbershop setting where elite athletes talk about the necessity of dedication to their craft. While James extols the virtues of playing at a high level, Jones similarly stresses the importance of hard work.
Was Jones copying James? Unlikely. Jones probably talks about hard work all the time. A simple Google search, in fact, supports his conclusion: Jones highlighted his work ethic as a key to his success in interviews with The Undefeated and The Atlanta Journal-Constitution. Along those lines, the idea that professional athletes would stress focus and commitment as key to their professions is not exactly a surprise—athletes often raise those themes when offering public comments about their careers and their teams.
But the specific execution of “The Shop” is protectable
Uninterrupted can’t rightfully claim ownership of the general concept of pro athletes sitting in a barbershop talking about life. But Uninterrupted could have a viable claim if “Shop Talk” too closely resembles the unique ways “The Shop” depicts this setting. In copyright law, the execution or expression of even a common idea can gain copyright protection. The relevant legal test is whether “Shop Talk” is substantially similar to how “The Shop” depicts the barbershop scene. If so, it’s at least theoretically possible that Alabama has engaged in infringement.
To that end, Uninterrupted can stress that there are certain specific qualities of “The Shop” that “Shop Talk” mimics. For one, the banter appears to be spontaneous. Unlike Coming to America and the other movies and TV shows mentioned above, “The Shop” is not scripted. It’s possible that James and other persons who participate in The Shop loosely sketch out the topics they will address before going on the show, but they are clearly not reading from a script. “Shop Talk” seems to utilize the exact same approach.
Also, both “The Shop” and “Shop Talk” feature similar camerawork and directorial choices. There are up-close shots of the person speaking and then cutaways to capture demonstrative expressions of his audience. While “The Shop” obviously did not invent this production style, it nonetheless distinguishes “The Shop” from other barbershop banter settings. Shop Talk noticeably adopts this same style.
Another similar expression of “The Shop” detectable in “Shop Talk” is the use of logos and graphics. Compare the graphics in “The Shop” to those that run at the start of the first episode of “Shop Talk”:
There are similarities, to be sure. Both use all caps. Both use the word “shop” in a two-word expression, though Alabama also refers to Bama Football and the establishment of the show in 2018.
After the start of episode one of Shop Talk, the logo shifts to Bama Cuts:
Again, both of these sets of graphics use all caps. Both also separate a two-word expression with a scissor. But there are several differences. For one, “The Shop” refers to itself in the graphics, whereas “Shop Talk” refers to the name of the barbershop where the show takes place, Bama Cuts. The font type also appears to be different, and the scissors are slightly different in design and pointed in opposite directions. Also, “Shop Talk” uses the Alabama “A” in red and mentions the date.
Substantial similarity and fair use seem to favor Alabama
Even though both shows convey the barbershop-athlete setting similarly, “Shop Talk” has the stronger argument in this case. The concept of substantial similarity is often judged by the spontaneous response of a lay observer. Even if such an observer knew little about sports, he or she would probably regard “The Shop” and “Shop Talk” as unique takes on the same setting. It’s also hard to imagine such an observer believing that the shows are in any way related.
Alabama could also stress that courts have extended broad protection under “fair use”, which permits the copying of copyrighted material in certain situations. Courts apply several factors to determine whether or not fair use is appropriate.
One such factor is the degree of creativeness in the original work—the more creative the original work, the less likely courts would permit others to copy it under fair use. Here, Alabama would contend that “The Shop”’s barbershop setting is anything but original. In response, Uninterrupted would assert that while the barbershop setting is not new, the setting of unscripted comments by pro athletes in a barbershop and its use of a particular style of camerawork are original.
Another factor is the degree to which the derivative work (in this case, “Shop Talk”) transforms the original work (“The Shop”). Although both shows are similar, “Shop Talk” features a different barbershop as well as different pro athletes. Also, unlike “The Shop”, “Shop Talk” incorporates a well-known coach (Saban).
Lastly, while copyright registration is not required for copyright protection, it does not appear that Uninterrupted registered “The Shop” with the U.S. Copyright Office. A search on the Library of Congress found several registrations for “The Shop” but none has to do with a web series.
Alabama also has an advantage in regards to trademark law
Uninterrupted’s letter to Alabama also refers to a possible claim under trademark law. Here, Alabama may be concerned about the similar titles—“The Shop” and “Shop Talk”—as well as the similar graphics and logos. Generally speaking, a viable trademark claim would require proof that consumers are confused by the similarities in the marks. As discussed above, it seems unlikely that consumers would experience such confusion. Also, there are only so many catchy expressions of barbershop talk that would work as a show title.
“The Shop” is also a mark that has been registered with the U.S. Patent and Trademark Office for a variety of purposes. For instance, in 2016, the shopping channel QVC registered it for “Entertainment services, namely, providing ongoing television programs in the field of home shopping of general merchandise broadcast via television, handheld devices and via a global computer network.” It does not appear that “The Shop” has been registered by Uninterrupted. While registration is not required for trademark protection, it would give the Uninterrupted a presumption of validity in any federal cases against companies that infringe on the company’s use of “Shop Talk” as a web series.
In an apparent attempt to appease the Uninterrupted, Alabama changes the name of the show
Even though the law favors Alabama, the school has apparently decided to rename the show from “Shop Talk” to “Bama Cuts” (which is also the name of the barbershop). On Wednesday night, the football program’s official account tweeted a link to episode two of the show. The tweet referred to the show not as “Shop Talk” but as “Bama Cuts”. The accompanying description of the episode two underscores the name change: “Bama Cuts is a series of casual conversations between Alabama Football players, coaches and former players at the barbershop inside the Mal Moore Facility.”
Perhaps Alabama’s voluntary decision to change the name of the show will satisfy James and Uninterrupted. If not, the Tide have factors working in their favor.
Michael McCann is SI's legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.
