Copyright PSA From A Talented Filmmaker

A very touching Copyright PSA from Krista Dzialoszynski.


Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Fair Use Fridays: Ripping DVDs For Documentary Films - Is There A Right To High Quality Free Speech?

We know from the recent Salinger/Colting case discussed here that prior restraints on speech must be weighed when we look at injunctions in the copyright infringement context.

But what about in the fair use context?  Let's look at the statute and think about a documentary filmmaker who wants to make a "fair use" of someone else's copyrighted work:

Section 107 of the Copright Act - 17 U.S.C. § 107. Limitations on exclusive rights: Fair use provides:


Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;


(2) the nature of the copyrighted work;


(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and


(4) the effect of the use upon the potential market for or value of the copyrighted work.


The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
 
The Digital Millenium Copyright Act makes it a crime to circumvent encryption to rip someone else's copyrighted materials.  So isn't that criminal statute an impermissible prior restraint on free speech?
 
Doc filmmakers can't make good quality films without ripping DVDs.  They can get lower quality elsewhere.
 
The Copyright Office should act soon because the International Documentary Association has asked that the exemptions to the DMCA be reviewed.  HT to Techdirt, Hillicon Valley, reports here.  Mike Masnick at Techdirt is pessimistic, read the link:

Documentary Filmmakers Want DMCA Exemption; But Almost Definitely Won't Get It Techdirt

Purchase Copyright Litigation Handbook from West here

Copyright Infringement PSA: Do Porn Stars Lose Royalties From Illegal Downloads?

Somehow this PSA video seems exploitative of the talent.  Are porn stars protected by agreements that give them shares in royalties?  Are they SAG?  If not, this video is really misleading.  A strange appeal to prurience in the battle against infringement.

De Minimus Copying in Copyright and Trademark Law

In Gottlieb Development LLC v. Paramount Pictures Corp., 2008 WL 5396360 (S.D.N.Y. December 29, 2008), Judge Denny Chin tossed out a copyright and trademark infringement claim brought by a manufacturer of pinball games against a film production company on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The claim was that Paramount put a Gottlieb pinball machine in the background of a scene featuring Mel Gibson in the film "What Women Want".

The defendant attached a copy of the DVD to its motion to dismiss. The court looked at the offending footage and found that the fleeting glimpse of the pinball machine was so trivial that he could throw out the copyright infringement claim and the trademark infringement (false endorsement) claim, even though the complaint had adequately pleaded the unauthorized copying claim.

Significantly, in determining the motion to dismiss, Judge Chin applied the U.S. Supreme Court's "plausibility" standard to the set of facts alleged in the complaint. See Bell Atlantic Corp. v. Twombly, 125 S. Ct. 1955, 1969 (2007), stating "...the Silver Slugger was filmed in such a manner and appears so fleetingly that I conclude there is no plausible claim for copyright infringement here" and "Because Gottlieb does not amplify its trademark claim with factual allegations to rise 'above the speculative level' [ ] its trademark infringement claim is hereby dismissed.

Two cases to compare are Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70, 75 (2d Cir. 1997) and Sandoval v. New Line Cinema Corp., 147 F.3d 215, 217 (2d Cir. 1998).

Film Production, Rights of Publicity and Borat

Lemerond v. Twentieth Century Fox Film Corp., 2008 WL 918579, 87 U.S.P.Q.2d 1219 (S.D.N.Y.)(LAP). Psenicska v. Twentieth Century Fox, 07 Civ. 10972 S.D.N.Y, September 3, 2007 (Preska, J.) found here courtesy of How Appealing.
When you make a film, do you need a person's permission before you put that person's image in your film? Can you "commercialize" the person's image without their consent? And if you do obtain a "release" from the person, are there limits to what you can use the image for?
Not surprisingly, Sacha Baron Cohen of Borat and Da Ali G Show fame has pushed everyone's limits on these issues.
In making the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan, Cohen went out into the streets dressed up as his fictional Borat character, accosted a man in the streets of New York City, and included the footage of the encounter in both the film and the trailer. Is that ok?
New York's Civil Rights Law Section 51 creates a cause of actions for "[a]ny person whose name, portrait, picture or voice is used within [New York] for advertising purposes or for the purposes of trade without" their written consent. There is a broad "newsworthiness" exception to the statute. In dismissing plaintiff's claims, Judge Loretta Preska found that Borat's childish and vulgar character was engaging in a commentary on American society and was accordingly, newsworthy.
In the Psenicska case, numerous plaintiffs executed releases that were sprung on them at the last minute before filming. The releases were detailed and indicated a consent to participate in a "documentary-style" film. During each segment, each plaintiff was subjected to offensive, humiliating and outrageous behavior from Cohen. Analyzing the question under New York contract law, the court found the term "documentary-style" - to accurately portray the Borat film's content. The court dismissed the fraudulent inducement claims, noting that such claims were specifically waived by the language in the release.
In producing a copyrighted work such as a film, one must take care to ensure that it consists of underlying content that is obtained properly. Had these issues not been litigated in New York, or release not been obtained, the result would surely have been different. The broad language of New York's Civil Rights law is narrowed substantially by the case law.