Anyone reading this has undoubtedly heard about The Satanic Temple’s (TST’s) claim that the new Netflix/Warner Brothers series The Chilling Adventures of Sabrina (Sabrina) unlawfully used a depiction of TST’s Baphomet monument as a symbol for the show’s devil-worshiping, cannibalistic, witches. This has lead to conversations among Satanists and non-Satanists alike over the nature of the work, whether or not TST’s claim has any merit, and (oddly) whether or not TST is right to pursue such a claim even among people who agree they have one. I think we could do with demystifying exactly what goes into this kind of challenge.
There’s something to be said for perspective
Now, it’s no secret that my ties to TST are many and the key players surrounding the case are friends of mine. Lucien writes here at the blog sometimes and TST’s legal counsel Stu De Haan is a fellow member of TST’s Arizona chapter. We had dinner together last Sunday. I haven’t really discussed the case with them very much though; I’ve just been consuming the same press-releases and statements as everyone else. One thing that’s become fairly apparent though, is that there’s a whole lot of confusion about what TST’s claim is and how copyright law actually works. So let’s take a minute and review some of the questions and claims, and hopefully shed some light on what I think is going on here and why it matters.
Baphomet Has Been Around For Centuries
True, but not TST’s Baphomet. The most common depiction of Baphomet that people refer to when they make this point is Eliphas Levi’s 1856 drawing shown here in all it’s public domain glory.
Many of the internet commentators with whom I’ve had or seen have discussions about the current kerfuffle (and yes, it’s a kerfuffle in every sense of the word) believe that since Levi’s image is public domain then that must mean TST’s Baphomet is just a derivative work that is not subject to copyright. That’s ridiculous. While it’s obviously the case that historical depictions of Baphomet are the inspiration for TST’s monument that doesn’t mean the work isn’t a new work subject to copyright. In fact, TST registered that copyright in 2013. I suppose (and in fact I think it’s quite likely) that whatever lawyers the makers of Sabrina would love to be able to demonstrate that TST’s Baphomet is not (to use a legal phrase) significantly transformative enough to warrant separate protections, but if we look at the history of commercial entertainment that doesn’t appear to be the case.
It’s a Cinderella Story
By way of example consider the classic fable Cinderella. No one owns the story of Cinderella. It has an interesting distinction of being a story that transcends culture dating back to pre-history. There is the classic Grimm version, there are Slavic versions in which the protagonist wears fur boots instead of glass slippers, Irish versions, Norwegian versions, and a Greek version (rather humorously called Little Saddleslut). There are even Portuguese, and Bulgarian versions of the story. Most of them aren’t even named Cinderella, but they’re all quite obviously the same story with different cultural influences and all are far too old to be subject to copyright protections.
But then there’s Disney’s Cinderella
If you remember the commercials from the 80’s and 90’s that would come on during Saturday morning cartoons (when there was such a thing) whenever marketing their video cassettes Disney was always very clear to prefix their name, Disney, onto the front of whatever movie they were selling based on older folk stories. It wasn’t “Cinderella” it was “Disney’s Cinderella” or “Disney’s Pinocchio”. They make that clear it’s not just A Cinderella, it’s THEIR Cinderella, and woe be to those who would violate a Disney intellectual property claim. That doesn’t mean you can’t make a version of Cinderella, you just can’t make one using Disney’s Cinderella.
In much the same way, Baphomet (the idea) is not TST’s Baphomet (the monument), and there are substantial differences between the historical conceptions of the mythical beast and TST’s version. Most notably the TST monument has features that most would characterize as traditionally masculine and added two children (one boy and one girl) flanking the Sabbatic Goat, which TST says is designed to maintain the symbolism of duality. It is a unique work that, like Disney’s Cinderella, is subject to copyright.
But It’s Fair Use!
If we accept that TST’s copyright claim is valid I don’t think the court of public opinion is the right place to assert fair use without some kind of arbitration. Fair use is a very complicated subject, especially in a commercial context like inclusion in a TV show. Is the show’s Baphomet sufficiently transformative? Does it affect the marketability and value of TST’s Baphomet monument and assorted merchandise? These really are questions for the courts to determine and TST has every right to pursue it if they believe their intellectual property rights have been violated.
No Christian Religion Would Sue Over Something Like This!
The banal answer to a comment like this is to simply point out that Satanists aren’t Christians, but even so such a critique isn’t very compelling when there’s evidence to the contrary. The Catholic Church in Brazil has sued on more than one occasion over various usages of Rio’s iconic Christ the Redeemer monument in film and television. Christian groups have sued over logo disputes, and megachurches create and license content for use by their affiliate churches around the country. Copyright enforcement is very alive and well in the religion industry. Much like my Cinderella analogy, you could make a movie about a church with a Jesus on a crucifix, but if that Jesus is a CGI rendering of Jim Caviezel from Passion of the Christ you should expect an angry phone call from Mel Gibson’s lawyers.
It’s No Big Deal, or, TST Should Focus on Social Justice Causes
I’ve seen a lot of criticisms along these lines, but the interesting thing here is that they’re not a legal argument at all, they’re ethical arguments that have nothing to do with law. These commenters tend to agree that TST has a legitimate copyright claim, but think pursuing such a claim would be in bad taste or (to put it in business jargon) damaging to TST’s brand.
First of all it’s interesting to reflect on the idea that Satanism’s reputation is so stellar that such damage isn’t negligible seems like the kind of idea that could only come from someone stuck in a media bubble. As religions go Satanism isn’t exactly well received in most places. Satan, after all, is the adversary of god. For all the flaws, contradictions, and silliness that most Atheists and Satanists can rattle off from bible stories god has a robust and well-funded public relations team, so Satan’s (and Baphomet’s) reputations aren’t stellar in the wider population outside of our Facebook information bubbles. None of that is of any legal consequence though.
It’s just weird to me that people would both say that TST has a claim while also saying that TST shouldn’t pursue it as a matter of taste. Copyright, as legal scholar and inventor of the Creative Commons Lawrence Lessig once wrote, “is a property right of a very special sort, [but] it is a property right”. Like any property, its owner has the right to decide what to do with it and any infringement on that right is subject to legal action. This is no trivial bit of law. Copyright is enshrined in the constitution as part of our fundamental rights of property ownership. There may be some confused communists and outright anarchists that disagree with that, but that’s not the way it is and most people agree with the idea of being able to own stuff.
The assertion that TST should forgo asserting their ownership rights because ‘that’s not what TST is for’ seems to miss the mark too. Why can’t TST do more than one thing? The organization already has, by my recollection, five civil-rights oriented lawsuits winding their way through the courts in three states, and as far as I am aware they fund those campaigns with sales of merchandise (including Baphomet merchandise), museum tours (including viewings of the monument), and donations. Their claim to their unique depiction of Baphomet is integral to the whole operation. It isn’t my job to prove that Sabrina’s use of Baphomet can cause TST financial harm, but in my layman’s opinion it certainly sounds like it might.
Leave it to the Lawyers
Again, and I can’t say this enough, I haven’t discussed this whole business with anyone in TST who makes the decisions very much. I’m not sitting in on meetings; I haven’t talked with them about their legal strategy; and I’ve just been consuming the same news articles and facebook debates as everyone else so this whole thing is just my personal take on the situation. I really can’t blame them for pursuing this course of action. I probably would too. It isn’t exactly a distraction from the other things TST does either, the group seems to still have plenty on their plate. But for those who still want to concern themselves with the implications of TST’s actions consider this: being able to control how your work is copied is, in its own way, a form of reproductive right and I firmly believe that like every other reproductive right it’s their decision whether and unplanned and unwanted reproduction should be forced upon them.