Arrested Development Documentary Has To Hit Up Kickstarter Because Fox Claims Copyright On Set Photos

from the wtf dept

Wed, Mar 27th 2013 12:27pm — Mike Masnick

Just a few weeks ago, we had a story about how an awesome looking documentary about comic artists needed to hit up Kickstarter to raise more money solely to purchase licenses to some of the artwork & video clips in the film. Most of the copyright holders let them use the work for free, but a few were demanding payment -- often thousands of dollars for a single image or short clip. As we've noted, documentary filmmakers are scared to death of relying on fair use, because they don't want to get sued (and some insurance providers won't give you insurance if you plan to rely on fair use).

And, now, there's an even crazier example. Two huge fans of the cult favorite TV show, Arrested Development have made a documentary about the show, talking to a ton of people who created and acted in the show, as well as to a bunch of fans. Given that a new season (via Netflix) is quickly approaching, getting this documentary out would make sense. The film is finished according to the filmmakers. Done done done. So why are they asking Kickstarter for $20,053? Yup, you guessed it. Copyright licensing issues. And this time, it's really crazy:

After five years, we're finally close to releasing the documentary. Our final step is to pay the network for photos from the set of the show. These photos are extremely relevant to the story, and we can't move forward with the release of the documentary until our fees are paid to the network. This is where you come in. Help us pay the network fees so every Arrested fan can see this documentary!

Yes, photos from the set. And, "the network" in this case is 20th Century Fox. This seemed so ridiculous to me that I asked the filmmakers, Jeff Smith & Neil Lieberman, for the details, and they said that these are photos taken by a variety of people on set and that the people who took the photos gave them to Jeff & Neil willingly, but that "the network is claiming copyright." Just to be clear, Jeff & Neil don't have a problem with this, saying that they believe that this is "within the network's rights" to make that claim and they emphasized that Fox was giving them a "deep discount on the photos" and that it "could have been much worse" otherwise.

While it's great that the filmmakers are fine with this, it still seems quite troubling to me. Whoever took the photos in the first place would own the copyright on the basic photos themselves. This implies that Fox is claiming copyright on the set itself, which appears in the images (or, they're lying and claiming copyright on something they have no copyright on). And, yes, they could potentially claim copyright on the set -- but that doesn't make this any less crazy. Jeff & Neil would have a massively clear fair use argument if they were challenged on using these images. It is not as if the use of those images would somehow harm the "market" for "the set" itself (which is about all the network could possibly be claiming copyright on). It would obviously be a transformative use, and they'd just be displaying parts of the set. This is about as open and shut a fair use case as you could possibly imagine.

And, really, this is doubly ridiculous, because this documentary is only going to help promote the show more, not harm it in any way... oh wait. Fox no longer benefits from that because Fox cancelled the show and the new season is happening on Netflix instead... Perhaps that's what this is about. The cash from this Kickstarter could have gone into all sorts of actually useful things, including more marketing and promotions for the documentary (which does look great). But, instead, it's going into Fox's bank account, because Rupert Murdoch needs it more than two independent documentary filmmakers who were huge fans of the show. I thought copyright was supposed to be about helping filmmakers, not forcing them to waste $20,000+ dollars on a bogus copyright claim..

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: arrested development, copyright, crowdfunding, documentary, sets
Companies: fox, kickstarter

58 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

dennis deems (profile), 27 Mar 2013 @ 12:11pm

There's always money in the banana stand.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 12:35pm

This doesn't seem right. Crew deal memos all prohibit on set photography of any kind. The still photographer works for the distributor (Fox) not the production company. If the photos are frames captured from the moving picture images, that would be property of the production company or Fox.

Interesting to find out the source of the photos.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 12:38pm

Re:
"Interesting to find out the source of the photos."

So you can sue them for breach of contract?

Everyone takes pictures of photos on set, I'm an engineer that works in the broadcast industry and I have loads of pictures of sets.
[ link to this | view in thread ]
Spaceman Spiff (profile), 27 Mar 2013 @ 12:46pm

Screw Fox!
This is why I don't watch ANYTHING FOX produces, support them, or subscribe to ANY Murdock publications or other of their stuff! Dickheads!
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 12:47pm

two reasons why Fox is doing this
a) because the amount of money they have, they can screw the film makers completely
b) because Murdoch is a total cunt!
[ link to this | view in thread ]
cynumber9, 27 Mar 2013 @ 12:49pm

Sugar Daddy
Netfix should just back the entire thing from their advertising budget
[ link to this | view in thread ]
jameshogg (profile), 27 Mar 2013 @ 12:50pm

I love how Fox steals from Arrested Development, then claim they are the thieves.
This oppression towards Kickstarter lately has been all too predictable.

I wish copyright lobbyists would just get it over with already and put out all the scare stories about how crowdfunding is a threat to creators, a scam magnet etc and therefore it should be illegal.

All in the name of "fighting for the rights of artists to be funded", no doubt. Yep, fund an artist on Kickstarter and help him make a living, and you are participating in stealing.
[ link to this | view in thread ]
Chosen Reject (profile), 27 Mar 2013 @ 12:55pm

Obviously the pictures deserve copyright protection because no one would have taken those pictures or built that set otherwise.

Example #umpteenth billion for why the Berne Convention's automatic copyright clause is stupid.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 27 Mar 2013 @ 1:02pm

This isn't actually new, it's just now public.
But here, TWICE in a row, I can largely agree with Mike that it's CRIMINAL to suppose that "Rupert Murdoch needs it more than two independent documentary filmmakers". -- See, it's all a matter of FOCUS. If Mike keeps on the Populist slant of stating to hell with the supposed economic "rights" of billionaires to get richer, then my work here is done.

Now, Economist Mike can go on to advocating some positive actions to take rather than just merely putting it out, such as means tests for copyright: it should lapse totally after the creators (or rather, vast corporations) get to well above sustaining level and don't have ANY need for the gov't protect them against, er, misappropriation.
[ link to this | view in thread ]
Vidiot (profile), 27 Mar 2013 @ 1:04pm

Maybe, Maebe
"Whoever took the photos in the first place would own the copyright on the basic photos themselves.

... unless they were a "work made for hire". Which is common enough in a situation like this... otherwise you need to pay the photographer, who's already been paid for the day, every time you use an image.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 1:14pm

Re: This isn't actually new, it's just now public.
Attack a person rather than the validity of the argument. Way to go fucko.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 1:16pm

It sounds to me that this is a contract case not a copyright case, so your fair use argument is out of place.
[ link to this | view in thread ]
Dave Nelson, 27 Mar 2013 @ 1:18pm

Take the $20,000, hire a good lawyer, and sue Fox to show cause why they think they have ANY copyright claim. DON'T let them get away with it.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 1:23pm

Re: Re:
Then you'll understand that a film/series set operates with different protocols?
[ link to this | view in thread ]
Rikuo (profile), 27 Mar 2013 @ 1:31pm

Re: This isn't actually new, it's just now public.
Blue...while I can see somewhat of a good idea buried in your most recent posts, the problem is they're buried underneath the attacks you aim at Mike. It undermines what you're saying when you both attack him, and agree (more or less) with what he's saying in the same comment.

Although I do have to ask: what does "well above sustaining level" mean? How would you measure it?
[ link to this | view in thread ]
akp (profile), 27 Mar 2013 @ 1:35pm

Not to be a killjoy on the whole "copyright is evil and stupid sometimes," but why didn't the filmmakers budget for this cost in the first place?

I'll admit, I sort of like these projects for lampshading just how much wasted money is going to the "copyright holder" for NO REASON.

However, I don't want this to become A Thing, where people can hold a finished project hostage so the rest of us can make up for their poor planning and budgetary shortfalls.

If you want to be a filmmaker, you need to better plan your projects so these costs don't blindside you.

Sometimes projects fail. It's a fact of life. If this wasn't Arrested Development, these guys would just be out of luck, and "try again next time," with subject matter you can afford.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 27 Mar 2013 @ 1:53pm

So why are they asking Kickstarter for $20,053? Yup, you guessed it. Copyright licensing issues.

LOL! Way to jump straight to the anti-copyright FUD. Nowhere in the Kickstarter page do they say these are COPYRIGHT licenses. They say: "Help us pay the network fees so every Arrested fan can see this documentary!" Mike, OF COURSE, just jumped to the conclusion that it was big, bad, EVIL copyright to blame for this terrible thwarting of artistic talent. OMG! Copyright! But, no, it's just a contract issue. Great job, FUD Boy. I know you have no journalistic integrity--or any integrity at all, for that matter--but sheesh. A little background work before jumping to the FUD would be appreciated. LMAO @ FUD-packer Mike. What a douche.
[ link to this | view in thread ]
Pixelation, 27 Mar 2013 @ 1:55pm

It doesn't say who took the photos and who owns them. If Fox is claiming copyright on someone else's pictures and getting paid, I assume there could be a lawsuit. If Fox owns them, oh well.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 2:01pm

Re:
That is not enough to get through the first court case, never mind the appeals that are sure to follow. Further the film would be on hold for years while the case wound its way through the system.
The studios and other copyright holders are quite adept a pricing 'licenses so that it is cheaper to settle that try and fight the case.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 2:03pm

Re:
Lemme guess... you didn't read the post and missed the part where Mike contacts the documentary makers who quoted "the network is claiming copyright" on the photos.

Way to jump straight to the copyright FUD.
[ link to this | view in thread ]
jupiterkansas (profile), 27 Mar 2013 @ 2:04pm

Re: Sugar Daddy
And they might just do that to make sure the Kickstarter meets its goal.
[ link to this | view in thread ]
Rikuo (profile), 27 Mar 2013 @ 2:06pm

Re:
" A little background work before jumping to the FUD would be appreciated."

Says the guy who didn't read the fucking article and completely missed the part where Fox was claiming copyright on the photos.
[ link to this | view in thread ]
gorehound (profile), 27 Mar 2013 @ 2:23pm

I have actively Boycotted the MAFIAA Industries for at least 8 years.
Why do any of you allow even a dime of your money to flow into their Corrupt Greedy Coffers ?

Fuck Them and as far as this Documentary goes use a Trash Dump for an image and make a punchline as to why you had to use it !
[ link to this | view in thread ]
Alana (profile), 27 Mar 2013 @ 2:25pm

Re:
RTFA.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 2:28pm

re: fair use market analysis
Fair use analysis of the relevant market would also include derivative works, so saying that there's no harm to the "market" for "the set" itself is examining too restrictive a market. There is a commercial market for photos of the set (a derivative work); think of a 'behind the scenes' book or something else geared towards fans.

Also, the transformative aspects are limited too. It's not particularly transformative of the original work (the set) to take a still picture and drop it into a video.

While there's still a decent case for fair use, this doesn't fall into one of the bright line examples.
[ link to this | view in thread ]
Ninja (profile), 27 Mar 2013 @ 2:36pm

Re: Re: This isn't actually new, it's just now public.
That. It seems he's suggesting that after you make some money copyright gets much less strict or something. Which might be a valid point to a discussion.

However it seems he can't stop being a moron and our pet clown.
[ link to this | view in thread ]
Ferel (profile), 27 Mar 2013 @ 2:37pm

Re:
Dear Lord you need help.
[ link to this | view in thread ]
Ninja (profile), 27 Mar 2013 @ 2:43pm

Re: re: fair use market analysis
What if some network went interview people in the set. Would you say they should pay for exposing the set in the background? What's the difference?

I think it's a bright example. The problem is that they have to go trough a lawsuit that is insanely expensive and economically stacked in favor of the deep pockets.

I'm thinking that maybe adding a threshold where lawsuits started by people or corporations with more than X times the amount of capital than the defending part would prompt the defending party to receive full public funding to hire whoever they wanted. If the ones suing lost the cause they'd have to pay everything. Food for thought.
[ link to this | view in thread ]
JEDIDIAH, 27 Mar 2013 @ 2:44pm

Where does insane BS go in the budget?
Would YOU have thought to budget for such a thing. I am not sure I would have and I am pretty cynical. There is always some other form of bullsh*t. This is what modern copyright has become. It's a roadblock for small artists.

So what does this go under? Miscellaneous insanity?
[ link to this | view in thread ]
Eroq, 27 Mar 2013 @ 3:26pm

Fox actually still owns AD
While Netflix has licensed the new episodes, Fox still technically owns the rights to Arrested Development. There have been many statements by Mitch Hurwitz and cast members stating the same. It even may end up on iTunes after, something Netflix wouldn't want to see.

http://mashable.com/2013/02/12/netflix-arrested-development/
[ link to this | view in thread ]
Devonavar (profile), 27 Mar 2013 @ 3:47pm

Works for Hire
As upsetting as this is, I think it's highly likely that Fox *does* own the copyright in question. Anyone with access to set would have signed a deal memo assigning all copyright for anything related to the set to the production company. That's routine, and it's in every deal memo I've signed for any TV show.

More than likely, the photos didn't just come from random crew members, but from the official stills photographer, who would also have an explicit contract assigning copyright to the production company (Fox). This is true with or without work for hire concepts; the copyright assignment is a standard part of the employment contract.

So, it's incorrect for Mike to call this bogus or copyfraud. They are not claiming copyright over the set itself; they are claiming copyright on the photos which would have been assigned to them by contract as a routine part of producing the series.

There's no question in my mind that this *should* be fair use, and in an ideal world the lawsuit would be frivolous. However, we don't live in that world, and I have no doubt that the law in this case will favour Fox.
[ link to this | view in thread ]
akp (profile), 27 Mar 2013 @ 5:17pm

Re: Where does insane BS go in the budget?
If I wanted to be a professional filmmaker, then yes, I would have researched who owned (or potentially owned) any materials I wanted to use in my film.

There *is* always some form of bullshit, I agree. But to not realize that you might have to license stuff to include it in your film is just lazy.

I'll bet they had potential music licensing fees built in to their plan, why would photos or film clips be any different?
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 6:21pm

They should take the Kickstarter money and instead of giving it to Fox, turn around and pay an artist to draw a picture of the sets.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 7:35pm

Re:
Really? This is the best you got, Chicken Joe? And your team whines that nobody read SOPA. Turns out your team is a bunch of douchebags that don't have much in the reading department either!
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 7:52pm

Re: Where does insane BS go in the budget?
Would YOU have thought to budget for such a thing. I am not sure I would have and I am pretty cynical.

Maybe you would if you made documentaries for a living.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 7:55pm

Re: Re: re: fair use market analysis
What if some network went interview people in the set. Would you say they should pay for exposing the set in the background? What's the difference?

The difference is that the network would be there taping with the permission of the producer for the sole purpose of a news story. But that seldom happens, sets are generally off limits to press. Sometimes they bring in an EPK crew, but they're hired directly by production.
[ link to this | view in thread ]
Anonymous Coward, 27 Mar 2013 @ 8:02pm

Re: Works for Hire
I think you are mostly right. It sounds like they may have seen some stills and asked to use them. Fox probably said, "Sure, that'll be 20 grand". Fair use would be if the photos had been published somewhere and Fox asserted a copyright claim. As usual, the sloppy 'reporting' around here raises more questions than it answers. I'm very skeptical that copyright is an issue at all.
[ link to this | view in thread ]
nasch (profile), 27 Mar 2013 @ 8:44pm

Re: re: fair use market analysis
There is a commercial market for photos of the set (a derivative work); think of a 'behind the scenes' book or something else geared towards fans.

You would have to then analyze whether the set photos in the documentary would be a good substitute for the set photos in the book. If someone wants to get photos of the set of Arrested Development, would the availability of this movie make them substantially less likely to buy the book?

That's ignoring the issue of whether a set can be copyrighted, which to me sounds completely ridiculous. But of course until someone spends millions of dollars to pursue it, we won't know.
[ link to this | view in thread ]
nasch (profile), 27 Mar 2013 @ 8:46pm

Re:
They should take the Kickstarter money and instead of giving it to Fox, turn around and pay an artist to draw a picture of the sets.

Fox would then sue them for distributing an unauthorized derivative work.

/wish I was kidding
[ link to this | view in thread ]
horse with no name, 27 Mar 2013 @ 10:33pm

Re: Works for Hire
Don't confuse Mike and the others with facts. They hate those pesky things, they just get in the way of a good rant.
[ link to this | view in thread ]
Anonymous Coward, 28 Mar 2013 @ 12:11am

I find it repulsive that people are asking for money from the public to pay monopolists.
[ link to this | view in thread ]
Anonymous Coward, 28 Mar 2013 @ 12:14am

Re: Re: Works for Hire
a) It doesn't matter, if you are using it to inform or transform it is fair use no matter where the source is.

b) Even if by some miracle this is not fair use, it should be, since talking about what others did in no way shape or form is copying, distributing or interfering with the commercial interests of others.

Explain how is this honest, moral or acceptable.
[ link to this | view in thread ]
PaulT (profile), 28 Mar 2013 @ 1:51am

Re: Re: Sugar Daddy
No need, they're already 150% funded. Predictably, most funding comes from people at level wanting a copy of the documentary rather than higher rewards, suggesting that most might just be people who wanted the doc and wished to see it released. That raises the question about how many of the profits from the venture are merely being robbed to pay for something that should have been an unnecessary cost, but at least it's going to see the light of day.
[ link to this | view in thread ]
PaulT (profile), 28 Mar 2013 @ 2:01am

Re: Re:
These guys don't even read beyond the title any more, it seems. They just cut and paste whatever impotent rant they have prepared, changing a few details to match whatever they imagine the argument in the headline to be.
[ link to this | view in thread ]
PaulT (profile), 28 Mar 2013 @ 2:09am

Re: Re: Works for Hire
One thing that always makes me laugh on Techdirt - when someone makes an essentially anonymous comment, with no facts whatsoever, with no purpose other than to attack the author of an article for hiding the facts. An attack on the substance of an article, while offering neither substance of your own nor any reason to doubt what's been said unless parroting the person above them. My favourite kind of idiot.
[ link to this | view in thread ]
PaulT (profile), 28 Mar 2013 @ 2:14am

Re: Works for Hire
"More than likely, the photos didn't just come from random crew members, but from the official stills photographer"

That's quite possible, but that's not what's said in the information available. So, you have your assumption, others have theirs. I'm sure the article will be corrected if you have an alternative source that backs you up.

As for the rest of your comment, I agree. It's a shame that this kind of thing needs to happen, but that's why it's so great that platforms like Kickstarter exist in order to help the independent film-makers out in areas where traditional funding and insurance may not.
[ link to this | view in thread ]
JMT (profile), 28 Mar 2013 @ 4:43am

Re: This isn't actually new, it's just now public.
...then my work here is done.

We should be so lucky...
[ link to this | view in thread ]
nasch (profile), 28 Mar 2013 @ 6:35am

Re: Re: Re: Works for Hire
It doesn't matter, if you are using it to inform or transform it is fair use no matter where the source is.

Transformation is only one of the factors considered when determining fair use.
[ link to this | view in thread ]
BentFranklin (profile), 28 Mar 2013 @ 7:49am

Re:
I totally agree. Kickstarter is for starting projects that have significant public value, not for begging to finish projects. I would pay for a Kickstarter to finance a fair use test case, not for throwing money into the maximalists' greedy maw.
[ link to this | view in thread ]
Mike Masnick (profile), 28 Mar 2013 @ 9:00am

Re: Works for Hire
More than likely, the photos didn't just come from random crew members, but from the official stills photographer

That is not what they told me via email.
[ link to this | view in thread ]
Anonymous Coward, 28 Mar 2013 @ 2:23pm

Re: Re: Re: Works for Hire
@ #42:
a. "if you are using it to inform or transform it is fair use": Absolutely wrong. Almost anything short of direct copying has at least a minimal transformative aspect, so that can't be the threshold for fair use. The current fair use test has 4 factors, and "purpose and character" of the use is only one factor. "To inform" is also not sufficient. If someone wanted "to inform" the world on how great/bad Harry Potter is, replicating the whole series verbatim is not fair use.

b. The studio has a commercial interest. Suppose they or someone else wanted to produce an "official" Arrested Development documentary or behind the scenes book. Photos of the actual set enhance the value of the new work and increase its commercial value. There is a market for derivative works, and commercial impact is another fair use factor.

I think it would ultimately be considered fair use, but that conclusion shouldn't be reached by blithely discounting the counterarguments.
[ link to this | view in thread ]
Anonymous Coward, 28 Mar 2013 @ 2:32pm

Re: Re: re: fair use market analysis
That's ignoring the issue of whether a set can be copyrighted, which to me sounds completely ridiculous.

The set definitely can be copyrighted, at least certain aspects of it. There were creative and aesthetic design decisions that went into the set that have some measure of copyright protection. Remember, a photograph of nature has a copyright, and that's when the 'set' wasn't even designed by humans. The functional part of the set (e.g., the lack of ceilings or a 4th wall to allow for camera/lights/etc. don't qualify for protection, but there are purely creative choices that have some level of copyright coverage. Probably not very strong protection but still something.
[ link to this | view in thread ]
nasch (profile), 28 Mar 2013 @ 3:06pm

Re: Re: Re: re: fair use market analysis
Remember, a photograph of nature has a copyright, and that's when the 'set' wasn't even designed by humans.

A *photograph* of a set can absolutely be copyrighted, but the set itself? You may very well be right but I hope not. That would mean one show could sue a later show because their sets incorporated copyrighted elements from the first show's sets. And you know they wouldn't limit themselves to reasonable claims either.
[ link to this | view in thread ]
Brett Thomas, 28 Mar 2013 @ 3:46pm

Re: Re: Works for Hire
I don't work in Hollywood, but I'd think all the cast members (and I'd guess crew) would sign IP agreements assigning all the IP work they're creating to the studio.

In this case, it seems to me, the issue isn't that it was taken on Fox's stage - it's that it was taken by people doing work for hire for Fox, and that Fox owns all the IP they created while doing that work, even if it was taken with a personal camera.

A ludicrous thought experiment - if a door was open on the set, and one of these employees was able to - on the clock - walk across the street, off Fox property, and take a picture of the set through the door, it would still belong to Fox.

However, the same picture, taken by a passerby, would not be owned by Fox, because that person wouldn't have an IP agreement with Fox.
[ link to this | view in thread ]
The Red Jaguar, 28 Mar 2013 @ 7:07pm

Re: Re: Re: re: fair use market analysis
The set definitely can be copyrighted, at least certain aspects of it. There were creative and aesthetic design decisions that went into the set that have some measure of copyright protection. Remember, a photograph of nature has a copyright, and that's when the 'set' wasn't even designed by humans. The functional part of the set (e.g., the lack of ceilings or a 4th wall to allow for camera/lights/etc. don't qualify for protection, but there are purely creative choices that have some level of copyright coverage. Probably not very strong protection but still something.

17 U.S.C. 102:

(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.

I'm not sure a set qualifies as a copyright-eligible work. Certainly individual set pieces may have a copyright if they quality as a "pictorial, graphic, [or] sculptural [work]," but a set (1) is not fixed and (2) is not in any of the above 8 categories.
[ link to this | view in thread ]
Anonymous Coward, 29 Mar 2013 @ 8:29am

Re: Re: Re: Re: re: fair use market analysis
17 USC 101: Definitions:
�Pictorial, graphic, and sculptural works� include two-dimensional and three-dimensional works of fine, graphic, and applied art....

I'm pretty sure the set would fall into the pictoral, graphic, and sculptural works. It's a functional piece of art (and the functional aspects cannot be copyrighted), but there are strictly aesthetic aspects that can be protected.

You're also mis-interpreting what "fixed" means in terms of copyright- think "tangible" rather than "immutable". Fixed is really in contrast to ephemeral or abstract- if I make a song in my head, that's not fixed. If I sing that song in the shower, that's not fixed. If I record my singing onto a CD, then I fixed and created a phonographic work. For a set, a design in the producer's head is not fixed; the actually built set is "fixed" and is a work. If they rearrange the set, then they have created another (derivative) work.

What I think is leading people astray is that a) the threshold to obtain a copyright are really very minimal, but b) just because you have a copyright, doesn't mean you have a lot of protection. For a functional work of art, like a stage set, most aspects of the set will not have copyright protection because of purely functional or scenes-a-faire reasons. However, the purely aesthetic aspects are protectable. These parts are easy to get around if you're building your own stage set because your own aesthetic choices really make those unlikely to be copied, but if you're taking a photograph, then those aesthetic aspects will be embodied, verbatim, onto the derivative work, and you have a copyright problem.

Also remember that courts have been treating fair use as an affirmative defense. Under that reasoning, the analysis isn't 'the work does not have a copyright'; it is 'the work has a copyright, but your unauthorized use of the work is excused'.
[ link to this | view in thread ]
Tom, 29 Mar 2013 @ 10:22am

"Whoever took the photos in the first place would own the copyright on the basic photos themselves."

Wrong, if the studio paid the photogs to take the pics then the studio owns the copyright.
[ link to this | view in thread ]
Patricia Aufderheide, 31 Mar 2013 @ 2:50pm

Documentary Filmmakers regularly employ fair use without trouble
I'm not sure why the makers decided they needed to clear the work, but in many circumstances (fair use being case-by-case) documentary filmmakers find it unexceptional and routine to quote copyrighted work without clearing in their productions. They do so consulting the Documentary Filmmakers' Statement of Best Practices in Fair Use (centerforsocialmedia.org/fair-use) and they get errors and omissions insurance, typically without incremental charges. Every E&O provider for docs in the US offers fair use coverage, with a lawyer's letter attesting to conformity of fair uses with the Statement.
[ link to this | view in thread ]