Disney So Desperate To Stop Leaks It Subpoenas ImageShack Over Single Blurry Still Image Of New Star Wars

from the and-creates-a-streisand-effect dept

Tue, Feb 3rd 2015 10:40am — Mike Masnick

Yes, of course, Disney is trying to keep the lid on the new Star Wars film and is extra careful to try to stop any leaks coming out about the new film, but this seems like a pretty expensive and silly way of doing things. The company's expensive lawyers at Latham & Watkins have sought a subpoena to serve on ImageShack because someone -- a user with the name "Darth_Simi" posted what appears to be a single blurry cropped still image from the film (shown here as a thumbnail):

The focus, obviously, is on trying to track down the leaker:

And while I recognize that Disney thinks it's incredibly important to figure out who leaked that single blurry image, this whole thing seems questionable for a variety of reasons. First, it seems highly likely that the blurry, cropped single frame image is not, in fact, infringing because it's fair use. It is a very tiny portion of the copyrighted work, it was not used for commercial reasons and certainly isn't going to impact the market for the film. As such, the attempt to subpoena ImageShack to identify the uploader should be denied, as it's not infringement.

Second, if Disney really wanted to stop such things, going to court seems like a fairly dumb way to do so. As the Hollywood Reporter story above notes, the image only had about 6,000 views when its story on this image went live. By the time I saw it, the number of views of the image had doubled, and it wasn't that long after the story had gone up. Disney clearly isn't using copyright law to stop this particular use, but rather as a separate tool to try to track down a leaker.

Third, it's hard to see how this effort could possibly be worth the money that Disney is paying its expensive lawyers for. Preparing the filing and going to court isn't cheap. And all over what, exactly? A tiny fair use, blurry, cropped frame from a movie that is only likely to get fans more excited to see the actual film?

Oh, and just to make this clear, we believe that our use of the thumbnail above is fair use for the same reasons that the original posting on ImageShack was fair use, and we'll add that, in this case, it's more so because we're commenting on the image itself in a press report -- and the image is newsworthy because of Disney's lawyers' own actions.

254506312 Star Wars (PDF)254506312 Star Wars (Text)

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Filed Under: copyright, darth simi, dmca, fair use, leaks, star wars, still, subpoena
Companies: disney, latham and watkins

49 Comments

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Vidiot (profile), 3 Feb 2015 @ 10:32am

Disney lawyers... that's the real force that shall be with you. At all times, and wherever you may hide.
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- Anonymous Coward, 3 Feb 2015 @ 1:09pm
  
  Re:
  and we know which side of the force they are on ....
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  - Anonymous Coward, 3 Feb 2015 @ 1:57pm
    
    Re: Re:
    They will tell you they are on the light side and they insisted what they told you was true... from a certain point of view.
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Baron von Robber, 3 Feb 2015 @ 10:44am

Latham & Watkins, aka M.M.A.S

Micky Mouse Anihillation Squad
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Anonymous Coward, 3 Feb 2015 @ 10:48am

"and the image is newsworthy because of Disney's lawyers' own actions."

Is there a name for what happens when the Streisand effect causes the item in question to become fair use?
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- Dreddsnik, 3 Feb 2015 @ 11:11am
  
  Re:
  "Is there a name for what happens when the Streisand effect causes the item in question to become fair use?"
  
  Disney Magic ?
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  - Jeremy Lyman (profile), 3 Feb 2015 @ 12:07pm
    
    Re: Re:
    Sorry, I think Disney Magic goes the other way... morphing public domain tales into privately held properties.
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- Anonymous Coward, 3 Feb 2015 @ 11:25am
  
  Re:
  The Monkey-selfie Effect?
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Bamboo Harvester (profile), 3 Feb 2015 @ 10:49am

"As the Hollywood Reporter story above notes, the image only had about 6,000 views when its story on this image went live. By the time I saw it, the number of views of the image had doubled,"

The Streisand Effect* strikes again.

*(C)2010, Mike Masnick
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- Anonymous Coward, 3 Feb 2015 @ 12:27pm
  
  Re:
  The Force is strong with Streisand....
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pegr, 3 Feb 2015 @ 10:52am

Intended consequences
Annnnnnnnnnnd.... Its down. Mike's got an exclusive now!
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Anonymous Coward, 3 Feb 2015 @ 10:55am

Thing is, it's likely a violation of an NDA. The leaker broke a contract, and should be found.

Of course, now that it's out there, they can't do much to stop it.
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- Michael, 3 Feb 2015 @ 11:30am
  
  Re:
  The leaker broke a contract, and should be found.
  
  Without knowing who the leak came from and where they got the image, you cannot possibly know if they violated an NDA.
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  - nasch (profile), 4 Feb 2015 @ 1:02pm
    
    Re: Re:
    Without knowing who the leak came from and where they got the image, you cannot possibly know if they violated an NDA.
    
    Thus the hedge "likely".
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- Josh in CharlotteNC (profile), 3 Feb 2015 @ 11:30am
  
  Re:
  An NDA has exactly zero impact on whether it's fair use and whether ImageShack has any obligation to take it down under a DMCA notice.
  
  The NDA is an agreement between Disney and possibly the person who uploaded it to ImageShack. ImageShack is not under the NDA.
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- JMT (profile), 3 Feb 2015 @ 3:31pm
  
  Re:
  The leaker broke a contract, and should be found."
  
  ...by Disney's internal systems, not via abuse of the DMCA.
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Violynne (profile), 3 Feb 2015 @ 11:00am

By sending out the DMCA, Disney confirmed the character rather than leaving it to rumor.

Disney gets more stupid by the minute, though this action should surprise no one considering the inhuman corporation also went after a day care for its unauthorized painting.

Unfortunately, the public just gave this corporation billions in profit for a movie called Frozen, so there's no such thing as "expensive" lawyers for this inhuman corporation.
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Anonymous Coward, 3 Feb 2015 @ 11:05am

Dear God. The artifacts in that image. I can see why they'd want to hunt down the person responsible for something so hideous.
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- techflaws (profile), 3 Feb 2015 @ 9:52pm
  
  Re:
  Probably their version of lens flare.
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Mike C. (profile), 3 Feb 2015 @ 11:14am

Lawyer cost is not a concern for Disney
But don't you see, cost isn't a real concern for a movie production studio. It's one of the ways they can absolutely guarantee the money doesn't "make a profit" - through the use of "expenses"

:-)
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John85851 (profile), 3 Feb 2015 @ 11:19am

Not about copyright
This isn't about copyright- it's about sending a message that Disney will come down hard, with all guns blazing, on anyone who leaks an image without their permission.

Is this fair use? Sure, but who's going to upload an image now and risk Disney's lawyers coming after them?
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PRMan, 3 Feb 2015 @ 11:29am

So different...
This is so different from the way Lucasfilm used to handle these things.

I mean, Weird Al wrote a whole song about the Phantom Menace before the movie ever came out just by what he read on the internet. And it was 99% accurate.

Lucas made a billion dollars understanding that this kind of thing is just fandom.

The takedown definitely makes me less excited to see the movie.
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- That One Guy (profile), 3 Feb 2015 @ 8:10pm
  
  Re: So different...
  Are you sure about that? I'd read that he'd asked to be able to see the film before it's release, so that he'd be able to get the details right, and Lucas allowed it.
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Anonymous Coward, 3 Feb 2015 @ 11:43am

My recollection is that the film is in post-production, with release months away.

It seems only natural and prudent that the company investigate if the still is taken from a purloined copy of the film.
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- Mike Masnick (profile), 3 Feb 2015 @ 1:38pm
  
  Re:
  It seems only natural and prudent that the company investigate if the still is taken from a purloined copy of the film.
  
  Investigate, yes. Abuse the DMCA to issue a bogus subpoena? No.
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Joel Coehoorn, 3 Feb 2015 @ 12:08pm

Not Fixed
There may be another reason that this image would not be infringing: it's not clear the that the film is fully finished yet. There's likely a lot of post-production details to be cleared up between now the and date the film is distributed to theaters. Copyright takes effect when the work is first fixed in a tangible medium of expression. Before then, is the work really copyrighted at all?
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- jackn, 3 Feb 2015 @ 12:41pm
  
  Re: Not Fixed
  When was the art fixed? As soon as it was recorded. Your statement has no basis in reality.
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- JMT (profile), 3 Feb 2015 @ 3:39pm
  
  Re: Not Fixed
  "Copyright takes effect when the work is first fixed in a tangible medium of expression."
  
  You mean like the tangible medium of expression you're staring at?
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jupiterkansas (profile), 3 Feb 2015 @ 12:39pm

I'm sure the lawyers are being paid out of the marketing budget for all the free publicity they'll get out of this.
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- Anonymous Coward, 3 Feb 2015 @ 1:25pm
  
  Re:
  Is negative publicity a good thing? I won't watch it because of their thug mentality.
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  - jupiterkansas (profile), 3 Feb 2015 @ 2:19pm
    
    Re: Re:
    Negative publicity can be a good thing for movies. Disney's had a thug mentality for decades, and it doesn't make people avoid their films or merchandise - not enough for them to ever worry about.
    
    I have no interest in more Star Wars but I know a week won't go by for the next year that I won't see a Star Wars reference somewhere (the next 5 years? The rest of my life?) This week it's on Techdirt.
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  - Reverend Draco, 9 Feb 2015 @ 10:24am
    
    Re: Re: Negative Publicity
    As I have heard over the years - ALL publicity is good publicity.
    Anything that creates a buzz. . . good, bad, or indifferent.
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    - nasch (profile), 9 Feb 2015 @ 11:08am
      
      Re: Re: Re: Negative Publicity
      As I have heard over the years - ALL publicity is good publicity.
      
      I think the Catholic church (and many others) would disagree with that ridiculous platitude.
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Anonymous Coward, 3 Feb 2015 @ 1:18pm

Not sure its wasted money
Everyone keeps assuming that this is another 'stupid ploy to try and suppress information'. Is it? I'd like to see figures on advertising costs for this level of exposure vs. the cost of their lawyers on this case.

I REALLY hate to say this, because it makes it feel more likely, but if news outlets keep talking about the 'streisand effect', some companies are going to realize that publicity is just a lawsuit away....

Reveal a leaker >and
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- JMT (profile), 3 Feb 2015 @ 3:42pm
  
  Re: Not sure its wasted money
  It's still stupid. You could instead spend the same amount of money on a form of publicity that doesn't result in you looking like a censorious legal bully and get you roundly mocked.
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DB (profile), 3 Feb 2015 @ 1:58pm

The statement of purpose should be their undoing.

They are invoking the copyright and DMCA for an improper purpose -- tracking down leaks and/or enforcing a NDA, rather than enforcing their right to make commercial copies of the entire work. They come right out and admit that they primarily want to identify the person, and taking down the content is strictly incidental.

They presumably are doing that to avoid the issue of fair use. This image may well be fair use -- the point is at least arguable. Normally an anonymous commentator may retain their anonymity through a judicial decision on that point (although they may lose it while determining damages, years later).
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Anonymous Coward, 3 Feb 2015 @ 2:18pm

The lawyers are on retainer. It didn't cost Disney any extra lawyer fees to do this.
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Jigsy, 3 Feb 2015 @ 2:27pm

Disney really is a Micky Mouse organization...
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Anonymous Coward, 3 Feb 2015 @ 3:44pm

Disney is hoping that whoever it was is discovered and is an ordinary person, with no job, no money, no prospect of getting any and therefore no prospect of putting up any sort of defense! in other words, if the judge is prat enough to allow this ridiculous fishing expedition to go forward, Disney just wants to expand it's bad name of bullying the underdog!!
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Anonymous Coward, 3 Feb 2015 @ 5:04pm

If I understand the law correctly, Disney or LucasFilm doesn't have standing to bring a copyright infringement claim for leaked materials from the unfinished work unless the work has been preregistered with the Copyright Office. A search for Star Wars at http://cocatalog.loc.gov/ doesn't turn up anything of note for this movie, other than the teaser trailer. If the database is current and I haven't missed anything, it seems to me that anything they are doing under the auspices of the DMCA is indeed abuse of the system, at least for now.
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- nasch (profile), 4 Feb 2015 @ 1:06pm
  
  Re:
  If I understand the law correctly, Disney or LucasFilm doesn't have standing to bring a copyright infringement claim for leaked materials from the unfinished work unless the work has been preregistered with the Copyright Office.
  
  Works are automatically copyrighted in the US. Registration affects what damages can be sought, but not whether a suit can be brought in the first place.
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  - Anonymous Coward, 4 Feb 2015 @ 4:26pm
    
    Re: Re:
    To be accurate, registration is a requirement in order for a federal court to have jurisdiction necessary to try a lawsuit for copyright infringement. See: 17 USC 411 and 412 re jurisdiction and damages.
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Anonymous SW7 fan, 3 Feb 2015 @ 7:48pm

I am the person Disney is seeking
I am actual the person who uploaded those images on imageshack. I wasnt part of the filming nor do I work for Lucas/Disney and therefore have no NDA's with them. All I did was upload a screengrab of the image from StarWarsUnderworld.com who originally reported on the leaked image back in October. I am a longtime star wars fan and was seeking to put all of the SW7 fan images in one place for other fans. Not sure why Disney is looking for me. Not sure if they think i can identify the real leaker or if they want to use me as some example but Im trying to get ahead of this and appreciate any advice you have!! This is real. I deleted my account around 5pm est today!
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- Anonymous Coward, 4 Feb 2015 @ 12:14pm
  
  Re: I am the person Disney is seeking
  My advice is write to info@eff.org.
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got_runs? (profile), 3 Feb 2015 @ 10:13pm

>
The image looks like a screenshot of "Song of the South"
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Anonymous Coward, 4 Feb 2015 @ 3:34am

I don't see the resemblance. Anyway, "Song of the South" is one film that Disney surely won't dare to make a copyright claim on, since it's extremely "politically-incorrect" by current US standards (although reportedly still sold in other countries) due to the film's [alleged] depiction of 19th century Negro-American slaves/sharecroppers as happy people.

I was curious and wanted to see for myself what all the fuss was about, but being a 'banned' film in the US, obtaining it requires breaking the law.
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- jupiterkansas (profile), 4 Feb 2015 @ 7:35am
  
  Re:
  I saw it before it was "banned" and it's not all that offensive. Just typical black stereotypes from the period. There are plenty of other cartoons and live action films out there that show the same thing.
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Monarch, 4 Feb 2015 @ 12:19pm

Better update the story
Looks like Image Shack deleted the image, better put out an update
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SomeGuy, 4 Feb 2015 @ 1:18pm

I'm guessing it's an attempt to stop future leaks. If this person has access to such images who knows what else the leaker has access to. With the recent Sony hacks (that might have been possible due to insider help), its a good precautionary move albeit an expensive one.
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