A Copyright First: Bogus Copyright Takedown Leads To Australian Court Awarding $150k Damages
from the but-is-it-really-over? dept
We're so inured to hearing about unjustified claims of copyright infringement going unpunished that's it's good to come across a case where extensive damages were awarded for the harm caused. It concerns a film that the Australian artist Richard Bell made in New York, with the help of an assistant called Tanya Steele:
Between June 2009 and September 2011, while on a fellowship in New York, Mr Bell produced and directed approximately 18 hours of raw footage for a film “The Blackfella’s Guide to New York”. He engaged Ms Steele to help him make the film, and paid her for these services.
Mr Bell made a trailer from the raw footage, which his agent posted on the Vimeo website.
Then things started to turn unpleasant:
Ms Steele, through her American lawyers, sent letters to Mr Bell and his agent claiming that she owned the copyright in the footage and demanding that the trailer be removed from the Internet. She also caused the Vimeo website to remove the trailer.
According to the official court proceedings, "threats of legal action were made in a calculated fashion by the respondent [Steele] through her New York law form [sic]" to both Bell and his agent. As a result of those threats:
Mr Bell’s agent did not display the footage on the Internet, postponed a showing of Mr Bell’s artworks, and delayed the sale of a catalogue of Mr Bell’s artworks that included a still from the trailer.
In response, Bell went to the (Australian) courts, which declared him the owner of the copyright in the film, and deemed Steele's threats "unjustifiable". Bell then asked for damages. These were granted in the latest judgment because Bell had lost the opportunity to sell some of his works, which typically cost tens of thousands of dollars, as a result of Steels' threats. The Australian judge awarded over $150,000 in damages plus another $23,000 costs against her.
As the article quoted above points out:
The decision sets an important precedent. As far as we are aware, this is the first time damages have been awarded where a third party had content removed from the Internet without legal justification. In light of this decision, if a person falsely tells a file-sharing or social media website that they own copyright in an image or movie to have it taken down, and in fact that is not the case, it could be actionable as an unjustifiable threat.
That's obviously good news in terms of deterring future unjustified claims of copyright infringment, at least in the Australian jurisdiction. But there are a couple of curious features about this case that are worth noting.
One is that Tanya Steele not only didn't turn up for the court case in Australia -- perhaps understandable, given the distance of Brisbane from New York -- but didn't even file a submission explaining her actions, so we don't really know her side of the story.
The second is that the article says: "The trailer for the video is now on YouTube". What's odd is that following that link brings up an ominous black screen with the following message:
This video is no longer available due to a copyright claim by Tanya Steele.
The original problem was over a posting of the trailer to Vimeo (and to the agent's Web site), not YouTube, which is nowhere mentioned in any of the documents, so this seems to be a new takedown. Maybe the case isn't over yet...
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Filed Under: australia, damages, richard bell, tanya steele
Companies: vimeo
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The problem is though that if she does challenge the case a new trial would have to be had. If she offers no justifiable excuse then sure they can bill her the $173,000 plus new lawyer costs.
They may also change the fine in light of new evidence.
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Now if we could just get statutory damages enacted for false takedowns.
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The only thing I can think of is if she edited the film, and perhaps is trying to claim copyright on that, which I would assume wouldn't be the case if Bell paid her to complete that work. But then again photographers claim copyright on pictures they have been paid to take.
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Independent Entertainment Professional
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They also seem to have a curious affinity for fishnets.
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It's a precedent, yes--but the odds that you'll see WMG or Sony (let's say) having to pay damages for a false copyright claim are infinitesimal even so. They're perfectly happy to fight a battle they know they're going to lose, as long as it means forcing the other side to keep paying ruinous legal fees. It's a game of chicken, with them.
Meanwhile, when large content companies steal from one another, they always manage to avoid court under the umbrella of "It was all a big misunderstanding, won't happen again!" (Unless you're talking about patent infringement, not copyright. Then it's all go.)
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Tanya Steele
Independent Entertainment Professional
Greater New York City Area
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- Bell paid Steele to assist with the making of the film.
- It depicts New Yorkers as anthropological specimens.
- Steele arranged to have the film edited in New York, but that edit was considered unsuitable and the final edit was done in Australia.
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She applied for and was granted US copyright over the raw footage stored on a portable hard drive as a "Motion Picture".
Do a copyright search on "blackfella" (for people playing at home this isn't a derogatory term, but one used by the Aboriginal people.)
She was paid for her time in cash and a painting.
She kept HIS laptop and portable hard drive.
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Or would a judge avoid that question if its resolution does not inform her ultimate decision?
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It also looks like she filed a complaint the end of last year against Bell in NY.
RFC Case Number: C-T11-9343R
Court Case Number: 1:11-cv-09343-PKC
File Date: Tuesday, December 20, 2011
Plaintiff: Tanya Steele
Plaintiff Counsel: Kerry A. Brennan of Pillsbury Winthrop Shaw Pittman LLP
Defendant: Richard Bell
Josh Milani Gallery Pty. Ltd.
Cause: 17:101 Copyright Infringement
Court: New York Southern District Court
Judge: Judge P. Kevin Castel
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Well someone sure needs to get these two together in the same courtroom when a Judge only hearing one side of a story is stupid. Both claim copyright ownership on the same media and we already have an idea who the real owner is making these take-downs invalid.
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If Steele wins in the U.S., it could set a very dangerous precedent for every movie produced in Hollywood. The MPAA needs to get involved in this one.
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The question is "who owns the footage?". The Australian court ruled based on one side of the argument, and not both. The other party has their own case in the US, so far not judged.
The real story is there - not in the ruling for "false copyright claims". Sorry Glyn, you tried too hard and once again failed.
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Hmm, that is a difficult decision there... on one hand you have the director of the film, who has done almost all the work on it, and on the other hand you have some random person who was hired(and paid for her work mind) to help out on a section of the filming and editing.
Yeah, you're totally right, that would be a tough call to determine ownership.
1/10, better try next time.
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Notice that the reason for the damages was because Mr Bell had "lost the opportunity to sell some of his works". Not only do we not know if anyone would have purchased his works we don't even know if anyone is interested in his works. This is in STARK contrast to movies that are pirated, there is clearly demand for those works. There is so much demand for the works that people are willing to risk fines and penalties in order to obtain them illegally. Why is it that you are applauding this damage award, and yet you bemoan damage awards to content rights owners awarded due to piracy.
There is no shortage of hypocrisy on TechDirt.
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Guessing
Obviously, we need to know more about how the film was made and what working arrangements they had. For example, did Steele do all the work and Bell paid for some of the cost? There have been court cases where if the parties did not have a strict work-for-hire relationship, the "employee" may have some IP rights to the work they did. Comic book artists, in particular, through the help of fellow artist Neal Adams, were able to get their artwork back to resell as art since they did not work under a strict work-for-hire agreement. Could be something similar in this case.
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