Things You Don't See Every Day: MPAA Argues For Fair Use In Court
from the say-what-now? dept
April Fool's Day has already passed, so it appears this is legit. Yes, the MPAA has jumped into a court case to argue in favor of fair use. A few years ago, we wrote about the fact that there are actually lawyers whose main job is to watch movies to make sure every single thing that's in there that might be covered by trademark or copyright is licensed. This leads to some crazy situations, such as the re-release of Titanic requiring a new license to show some of the paintings hanging in the film.But what happens when a work in a film is infringing? Well, that's the case at hand here. Apparently, the Baltimore Ravens football team used a logo designed by a fan for a few years, violating his copyright. The court ruled against the team, but also didn't give the artist any money, since it noted that any profits from the team had nothing to do with the logo.
Then, in 2008, Bouchat sued the NFL and the Baltimore Ravens again. This time, he objected to use of the old infringing logo in highlight films, on the stadium's display of old players and memorabilia. Then, a few years after that, he sued yet another time over use of the logo in documentary videos, in pictures on the stadium wall and in the Madden NFL football game, which allows users to compete with throwback uniforms.Bouchat appealed. And suddenly, the MPAA woke up and realized that fair use matters to the MPAA too. If the ruling goes in favor of Bouchat, suddenly many, many movies may be on the hook for things that happened to show up in movies that weren't properly licensed. And then, the very same MPAA, who has worked hard to limit fair use around the globe, wouldn't be very happy. So it actually had some Stanford fair use lawyers (who aren't often on the same page as the MPAA) help it draft an amicus brief explaining why fair use is important.
Last November, a federal judge declared most of the uses -- including in NFL television series and documentaries such as one that featured the player draft -- to be covered as "fair use." The judge factored in the purpose and character of the use, the nature of the copyrighted work, the amount used in relation to the copyrighted work as a whole and the effect of the use upon the potential market for the copyrighted work. The only use that fell outside of fair use was the way in which Bouchat's logo was incorporated into a video game.
Bouchat asks this court to adopt a rule that would depart from well established precedent and would have the potential to interfere with important speech and expression rights. Bouchat seeks nothing less than a de facto right to control the depiction of facts—in this case, events that actually happened on the football field—simply because those facts include the fact that the players wore uniforms that include Bouchat’s copyrighted logo. It is antithetical to the purposes of copyright to use it to force an inaccurate depiction of actual events.Funny, isn't it, that this is the very same MPAA who insists that nothing about copyright law can be construed to be a limit on free speech. Well, until it's the free speech of the MPAA's studio members, I guess.
The potential impact of Bouchat’s claims is not limited to the Baltimore Ravens or the NFL. Many historical subjects cannot be discussed effectively without the use of copyrighted material. It would be difficult, for example, to make an effective biography of an actor without including audiovisual clips depicting his work, in order, for example, to illustrate a point about his career and impact, Hofheinz v. A & E Television Networks, 146 F.Supp.2d 442, 446–47 (S.D.N.Y. 2001) (finding transformative film footage used for the purpose of enabling the viewer to understand the actor Peter Graves’ modest beginnings in the film business), or to create a comprehensive study of surrealist art without including works by Salvador Dali, to accompany the author’s commentary, see Warren Publ’g Co. v. Spurlock, 645 F.Supp.2d 402, 419 (E.D. Pa. 2009). It would be nearly impossible to document any sliver of life in a major American city without capturing vast numbers of logos, signs, billboards, and other copyrighted works along the way. Cf. ESS Entm’t 2000 v. Rock Star Videos, 547 F. 3d 1095, 1100 (9th Cir. 2008) (“Possibly the only way, and certainly a reasonable way, to” recreate “look and feel” of city was “to recreate a critical mass of the businesses and buildings that constitute it,” even if protected by trademark). It would be similarly impossible to make a documentary about the healthfulness of McDonald’s food (Super Size Me) or Wal-Mart’s business practices (Wal-Mart: The High Cost of Low Price) without depicting each company’s logo.
Bouchat asks this Court to set forth a rule that would require permission for uses like these. That rule would have a profoundly negative impact on free speech and expression because rights-holders would demand some control over the way individuals or organizations are portrayed, or simply choose to prohibit unflattering or disfavored depictions.
Not surprisingly, I actually agree strongly with the MPAA (who thought they'd ever see that come out of me?) that this should be fair use. I just find it funny to see the MPAA making such an argument.
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Filed Under: copyright, fair use, frederick bouchat, logos
Companies: mpaa
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who thought they'd ever see that come out of me?
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Re: who thought they'd ever see that come out of me?
MPAA is still the Enemy ! Do not be fooled by their propaganda.
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Re: who thought they'd ever see that come out of me?
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Could We Quote Them?
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Re: Could We Quote Them?
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Re: Re: Could We Quote Them?
Really? Think who you're talking about here.
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Re: Could We Quote Them?
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Fan art can be seen as part of the collective culture, and the Ravens would seem to agree since they had someone make a slightly different version in color, but how aggressive was the Ravens or the NFL in enforcing copyright and trademark licensing of their version?
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The more general (and still correct) form of this is: there was no way that a branch of any industry in any form would argue in favour of anything unless it was going to be to its advantage.
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Proof read fail!
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Not even remotely fair use, they should pay
It seems a clear cut case of using someone's creative willfully to your own financial advantage. If they had not used this logo they would at the very least have had to have forked out to some design company at some ludicrous fee.
This is precisely the sort of instance where fair use should not apply.
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Re: Not even remotely fair use, they should pay
The current case is about documentary films that show the logo.
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Re: Not even remotely fair use, they should pay
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Re: Re: Not even remotely fair use, they should pay
A documentary by them about one of their teams is more like an extended advertisement than a public information piece.
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Profits from the team have nothing to do with the logo
If the team's profits have nothing to do with the logo, offer the team a settlement where they can either pay $1-5 million or change their logo. They can decide which is cheaper. I for one am willing to bet that even if their profits have nothing to do with the logo, they'd still pay because of all the marketing and everything else they do with their logo.
If there was really no profit in a logo to the team, they'd be willing to change it.
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Re: Profits from the team have nothing to do with the logo
Here's a brief history of NFL team logos. The Detroit Lions have change their logo twice in the last 10 years, Broncos have changed their logo twice in 20 years, and there's more. Some teams change more often than others, and some only make minor changes, but they all make changes (except the Jaguars, but they're young).
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Re: Re: Profits from the team have nothing to do with the logo
> to pay even one million dollars or change
> their logo, they would have just changed
> their logo. It'd give them an opportunity
> to refresh the team, make it look new and
> exciting, etc.
Not to mention, they get to resell merchandise to every fan who already has the old stuff. Who wants to be the fan wearing yesterday's logo to the game?
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Re: Re: Re: Profits from the team have nothing to do with the logo
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A new precedent?
Or will it just be one of those "MPAA won, now let's pretend fair use doesn't exist" type deals?
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Surprise due only to your constant demonizing.
A stopped clock is right twice a day, but by constant effort Mike manages to be wrong far more often than the basic 50% chance.
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Re: Surprise due only to your constant demonizing.
A stopped clock is right twice a day, but by constant effort OOTB manages to be wrong more often than the basic 50% chance.
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Re: Surprise due only to your constant demonizing.
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Re: Re: Surprise due only to your constant demonizing.
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Re: Re: Re: Surprise due only to your constant demonizing.
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Re: Re: Re: Surprise due only to your constant demonizing.
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Re: Re: Re: Re: Surprise due only to your constant demonizing.
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Re: Surprise due only to your constant demonizing.
There is something going on in that head of yours, but i don't think you know what.
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Re: Surprise due only to your constant demonizing.
Other than that it's the usual point missed. It's getting old ootb you need to reinvent your trolling or you risk being suplanted by aj or bob. You wouldn't want to lose right?
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Re: Surprise due only to your constant demonizing.
If not self blinded by your anti-fair use mania, you'd see that even Mike is sometimes right, boy.
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Re: Surprise due only to your constant demonizing.
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I'm not who you're asking, but I definitely don't agree with that. And in the US at least, it's empirically false. Fair use, if nothing else, means the creator does not have an absolute right of copying and distribution. And he certainly has no control whatsoever over how the work is used.
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Wow. That's quite the straw man. The MPAA relies heavily on fair use. Give me a break with this constant hating and demonization.
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But if they take you to court and you try to use Fair Use as a defense, they suddenly say "it's not a legitimate defense".
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Sometimes even Stalin is on your side.
They have no scruples, no morals, no principles. They are a like a bunch of toddlers. What's theirs is theirs and what's yours is theirs.
There's really no point in sugar coating it.
They steal from actors. They steal from producers. They steal from writers. They fled to Hollywood to be IP scofflaws to begin with.
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Re: Sometimes even Stalin is on your side.
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For it's own profit, boy.
But if anyone else does the same thing, they freak out.
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seems to fit you well, boy.
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Nope.
I'm referring to your apparent immaturity and lack of judgement, boy.
I'm a Brooklynite, born and raised (Kings Highway and Ocean Parkway, to be exact)
And the fact you equate it with Southerners and slavery gives us an idea of your biases...
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After them.
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so i can sample again?
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Dude, you drew one thing. It was sort of cool. Now do the world a favor and get a real job.
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I do agree with you....hell, I know people who are artists who would agree with you....gotta keep creating and working to keep getting paid.....but then again, every artist I know whos made money off their art also worked other jobs and understand that they need to keep working/creating to keep getting money.
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Not surprising, look who wrote the
These aren't hypocrite maximalists changing their tune, but tireless advocates for Fair Use and have been for years. Heck, Julie Ahrens even penned some anti-SOPA articles and a few arguing against bogus copyright claims. I can't believe the MPAA even speaks to her after that.
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Not too surprising
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Frederick Bouchat For The Win ....
They wouldn't want the descendants of the descendants going after them because an actor read a few lines from a book, or an old movie played on a TV screen, or some music from the 1930's was used in a movie.
Then there is the serious issue of the never being able to extend copyright again. The instant copyright was extended, they would have to pay royalties on all the public domain content falling back under copyright.
What a nightmare. :)
I hope he wins.
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Re: Frederick Bouchat For The Win ....
Precedent supporting fair use > a loss to the MPAA.
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Re: Re: Frederick Bouchat For The Win ....
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Re: Frederick Bouchat For The Win ....
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Cat's already out of the bag. The brief has been filed and there for all posterity. This can now be used regardless of the outcome of this case. They will have a hard time backing down from this position that they have already taken, publicly.
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Re: Re: Re: Frederick Bouchat For The Win ....
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Simple.
The MPAA on the other hand can make tons of money with their creations, so any use by you is copyright infringement.
And All Was Well In Dodd-land.
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Twilight Zone
The world has.gone.mad. O_O
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