Mozilla Asks Court To Force FBI To Turn Over Information On Hacking Tool It Used In Child Porn Case

Gene Kelly's Widow Claims Copyright In Interviews Done By Gene Kelly, Sues Over Academic Book

from the suing-in-the-rain... dept

Thu, May 12th 2016 10:40am — Mike Masnick

Another day, another story of copyright being used for censorship, rather than as an incentive to create. Here's the headline: Gene Kelly's widow is suing to stop an academic book exploring various interviews that were done over the decades with the famed actor/dancer. And here's the lawsuit, in which Kelly's widow, Patricia Ward Kelly, who was married to Gene Kelly for the last seven years of his life, claims that she holds the copyright on every interview that Kelly ever did. From the lawsuit:

The spoken and written words by Gene Kelly during all of his interviews ("Interviews") are original works of authorship and are copyrightable subject matter under the laws of the United States.

Prior to and during Gene Kelly's marriage to Plaintiff, which lasted until his death in 1996, Plaintiff was designated as Mr. Kelly's official biographer and archivist of his materials, including letters, interviews, manuscripts, holograph notes, photographs, memorabilia, and related items. Plaintiff is the sole, official authority entrusted by Gene Kelly to promote and protect his legacy. In these capacities, Plaintiff documented his life and work, and collected, organized and catalogued his materials. including the Interviews, so that these materials could be used to write books, create online platforms, and produce films, educational talks and shows, so as to provide an accurate record of Gene Kelly's life and work.

In accordance with Gene Kelly's Will and the Eugene C. Kelly Family Trust, Plaintiff was bequeathed and succeeded to the rights to Gene Kelly's intellectual property, including the copyrights in and to the Interviews.

Now, the legal issues here are at least somewhat nuanced. The question of who actually holds the copyright in an interview is actually a hotly debated topic in some copyright circles, and the answer is not as clear or as simple as you might think (or as it probably ought to be). Remember, of course, that the law is pretty explicit that copyright is given to whoever fixes the interview into a tangible medium. So, in most cases, it would seem that whoever is recording/transcribing/publishing the interview likely holds the copyright in it.

That's what a district court in Southern Illinois found in the Taggart v. WMAQ case back in 2000. There, a court found that the interviewer held the copyright, rather than a prison inmate who had been interviewed by the local TV station and didn't like how it came out. The inmate argued that his responses were a "performance" that allowed him to get copyright protections, but the court rightly rejected this:

Plaintiff's reading of copyright law to protect his interview comments with WMAQ as a work of authorship conflicts with the “most fundamental axiom of copyright law [that no] author may copyright his ideas or the facts he narrates.”

But not all cases have turned out that way. There's a case from 1980 that suggests there might be a copyright interest in the interview that could be held by the interviewee, but the case did not turn on that issue and the court went no further. There's another case that suggests each individual in an interview retains a copyright interest in their portion of the interview (so just the questions or just the answers). And then some argue that the entire interview is a "joint work" of authorship, where both parties hold the copyright jointly. Frankly, I think that copyright law is pretty clear that the Taggart ruling is technically correct, that the ownership goes to whoever does the fixing. But, with weird rulings lately about "performances" who knows how courts will rule.

Frankly, it's a little amazing that the issue hasn't been more widely litigated. But here's a chance to do so, though I suspect it may get tossed pretty quickly, because the lawsuit, at least, doesn't even bother to specify what specific works are being infringed, or even hint at whether or not Kelly registered his copyrights in those interviews (a necessary step to bring a lawsuit). Given those two limitations, the lawsuit, as is, likely doesn't have much of a chance.

The book in question is written by an academic, Kelli Marshall, who appears to be a huge fan of Gene Kelly and is working to put together a scholarly book exploring a bunch of his interviews. Kelly's widow finds this quite upsetting:

On or about March 29, 2016, Plaintiff was contacted by defendant Marshall via a Facebook message inquiring whether permission is needed to include several ofthe Interviews in a printed book Marshall is planning to cause to be issued by and through University Press.

On or about March 29, 2016, Plaintiff responded to Marshall via Facebook message, stating, "Yes, Gene's words are his intellectual property . . . as are his letters, holograph notes, magazine pieces, etc. . . . You must obtain permission to use them."

On or about March 29, 2016, Marshall responded to Plaintiff via Facebook message, informing Plaintiff that Marshall is in the process of editing a book of Gene Kelly interviews for co-defendant, University Press, as part of the University Press' "Conversations with Filmmakers" series (the "Book"). Marshall stated that she intends to use various Gene Kelly interviews, including several interviews Gene Kelly had conducted with the British Broadcasting Company ("BBC"). Marshall sought Plaintiff's permission for use of those Interviews.

As you can probably figure out, Kelly's widow refused to grant permission, and then followed it up with a cease and desist letter. University Press then sent her a letter saying that it was going ahead with the book, saying that it had obtained permission "from unidentified third parties," which likely means the publications where the interviews were initially published. And you can figure out what happened next:

On April 18, 2016, Plaintiff's counsel responded to University Press by email (copying Marshall), stating that Plaintiff owns the copyrights to all of the Interviews, not just interviews with the BBC, and that Defendants have no permission to use any of the Interviews for the Book or for any other purpose. In that same email, Plaintiff's counsel advised University Press that the threatened publication is highly damaging to Plaintiff's rights and, unless Defendants cease and desist, Plaintiff would seek damages, including statutory damages, for willful infringement of the copyrights in the Interviews.

Yeah, this seems like a nonstarter. First off, Kelly's widow is clearly overclaiming here. Just because Gene Kelly said stuff in interviews, it does not mean that he has any copyright interest in them, let alone automatically getting copyright on all his words, where no one can ever make use of them. That's just not how copyright law actually works.

And, from the emails, it certainly sounds like the publisher got permission from whoever has a much stronger claim to the copyright in most of the interviews it wanted to publish. And, of course, even if none of that is true, it seems like there's a fairly strong fair use case here, considering that it's an academic publication, and done as a compilation to look more closely at Kelly's interviews over the years (I wouldn't say that the fair use claim is a slam dunk, but there's a strong argument that can be made for fair use). But, of course, that requires Kelly to actually have a copyright interest (and to have registered it) in the first place.

But, really, let's take a step back here and look at the bigger picture. There is no legitimate copyright reason to grant Kelly a copyright in interviews that he did. He was not incentivized to do these interviews because of the copyright. He did them for whatever reason -- probably related to getting publicity in most cases. As such, it's ridiculous that we're even discussing a copyright interest at all here. There's no need for one for the interviewee.

So, in the end, this seems like yet another case of copyright as censorship. Patricia Ward Kelly does not want anyone else publishing a book that has extensive quotes from her husband (it should be noted that she's apparently working on her own book...), and thus the easy tool to use is copyright to censor this book that she doesn't control. Again, I can't see how this lawsuit survives very long, but it's another in a long list to add to examples of (1) copyright as censorship and (2) estates of deceased creators overclaiming copyright.

Gov-Uscourts-Cacd-646701-1-0 (PDF)Gov-Uscourts-Cacd-646701-1-0 (Text)

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Filed Under: books, copyright, gene kelly, interviews, kelli marshall, patricia ward kelly

42 Comments

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Vidiot (profile), 12 May 2016 @ 10:35am

It's only IP post-mortem
It would be interesting to require Ms. Kelly to produce all the contracts and agreements granting interviewers and media outlets permission to use Gene's (so-called) IP... after all, without these, none of his words could ever have seen the light of day.

What's that? No responsive documents? Wonder why...
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That One Guy (profile), 12 May 2016 @ 10:58am

"... who?"
Every time someone tries to pull a stunt like this, using copyright to try and control each and ever aspect to someone's works, whether their own, a relative's or some sap they conned into signing the rights to them, the response should be simple and permanent:

The person who's works are being locked down effectively ceases to exist.

You don't use their stuff, you don't talk about or refer to them, for all intents and purposes they and their creations no longer exist. Someone wants to exert complete control over their stuff, they get to enjoy having no one else interacting with it.
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Copyrights on interviews?, 12 May 2016 @ 11:01am

Seriously?

Seems like a logical idea for the interviews to go strait to the public domain, doesn't it? But that can never be allowed, I guess...
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Anonymous Coward, 12 May 2016 @ 11:06am

My whole life is a performance.
Therefore I own the copyright to everything I say and do.
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I.T. Guy, 12 May 2016 @ 11:10am

Who's Gene Kelly?
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Anonymous Coward, 12 May 2016 @ 11:16am

How Copyright Law Works
That's just not how copyright law actually works.

Well, not for the peons, no. But there are different rules for the rich and famous.
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Anonymous Coward, 12 May 2016 @ 11:26am

Another day, another example of Mike Masnick using an outlier to try and further his silly agenda, rather than focus on the reality that copyright is the only protection artists possess.

Snore.
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CanadianByChoice (profile), 12 May 2016 @ 11:27am

Correction
"... copyright as censorship ..."

Should read "... copyright to take a ton of money from people that actually do things, because I don't want to [do things] myself"
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Roger Strong (profile), 12 May 2016 @ 11:28am

Re: My whole life is a performance.
Don't forget the Butterfly Effect, the idea that one small action you take could eventually have a far-reaching ripple effect on subsequent historic events. You may own the copyright on what others far away, later, say and do.

Which isn't much different from what Gene Kelly's widow is claiming.
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Anonymous Coward, 12 May 2016 @ 11:34am

My guess is Kelly's lawyers are getting paid no matter what, so it doesn't hurt them to go forward with this kind of nonsense.
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Anonymous Coward, 12 May 2016 @ 11:46am

Just another reason why copyright should never go past death. You get a copyright for x number of years or until you die and when you die it automatically goes into the public domain.
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Anonymous Coward, 12 May 2016 @ 11:46am

Re:
Because copyright is certainly going to motivate Gene Kelly to produce more content in 2016.
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Anonymous Coward, 12 May 2016 @ 11:55am

Re:
Funny thing about this story is the Artists was not concerned about any copyright in the works under discussion, but his wife has suddenly interested so that she can control the the works of others and prevent competition to a book she has not yet written.
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That One Guy (profile), 12 May 2016 @ 12:02pm

Re:
I'd say that life-time is already far too much but if it absolutely has to last that long it should be that long and not one day more.

A creator dies and the next day all of their stuff is public domain. It's not as good as a more limited duration for enriching the public domain but at the creator's death no amount of incentive will cause them to create more, so the justification for continued copyright over the works is gone.
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Roger Strong (profile), 12 May 2016 @ 12:06pm

Re:
Speaking of silly agendas...
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Anonymous Coward, 12 May 2016 @ 12:26pm

Re:
And if a collaborator in a project dies suddenly then everyone else in the project is boned. There needs to be a time after death where copyright still applies, if for no other reason than to allow under-way projects to finish in the interest of the orderly dissolution of a person's copyrights. Five years, ten at the most is enough.
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Dan (profile), 12 May 2016 @ 12:29pm

Re: Re:
I think that the "he's dead, so he won't create anything else anyway" argument is too simplistic, because it ignores any ability or motivation to give something to the author's heirs.

Let's suppose for the sake of discussion (as the constitution supposes) that the ability to protect and sell your works does act as an incentive to create works of science and useful arts. Many people make life decisions with at least some consideration of what they will be able to leave to their heirs, be they children, other family members, or other designated people or organizations.

If I'm a businessman, I can build a business that I can leave to my kids. If I'm a farmer, I can leave them the farm. But if I'm an author, or a singer, or a painter, or a composer, and my copyright terminates when I do, the best I can do is leave them whatever I've saved of the royalties. The copyright, being valid for a shorter time, is worth less, and thus the monetary incentive to create is less.
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Anonymous Coward, 12 May 2016 @ 12:35pm

Re:
To Which artist are you referring?
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That One Guy (profile), 12 May 2016 @ 12:52pm

Re: Re: Re:
If you start going down that road though when would it ever end? Do the heirs 'deserve' 10 years of ownership to profit off of their parent's work? 20? 30? Do the heirs deserve to profit off of the ownership for their entire lives? What about their heirs? At what point do you then say "Okay, you were 'owed' the control and profits over this work yesterday, but it's the public's to do with as they wish from today onward?"

Put bluntly, if someone would have created something, whether a story, or a song, or a piece of art but decided not to because their kids, or the kids of their kids wouldn't be able own it and control it for decades after their deaths, then I'm pretty sure the public and culture can do just fine without their contribution.

Copyright is ultimately meant to benefit the public, with benefit to the creators the means of doing so, so even if decades of postmortem copyright did provide some slight extra bit of incentive to create, it does so to the detriment of the public and culture, locking up and barring use of the works for even longer, and I highly doubt the handful of extra works that might be created as a result would come even remotely close to how many works would be created were the original work made public earlier.
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Dan (profile), 12 May 2016 @ 1:11pm

Re: Re: Re: Re:
All good questions, but well outside the scope of my comment. My point was, simply, that a collection of rights that lasts for life + 50 years is (generally) worth more than the same collection of rights that only lasts for life + 20 years, which itself is worth more than the same rights that are only good for life.

To say, then, that copyright shouldn't last past the author's lifetime, because no incentive can then result in him creating anything new, is overly simplistic and shortsighted. That additional copyright lifetime has a present value. That value matters, whether the author wants to leave it to his kids or sell it to a publisher (and if a particular author really doesn't want, or need, that additional time, he can always dedicate his works to the public domain in his will, or even before his death).

Obviously the value to the author needs to be balanced against the public's interest in the work, and the present laws do an abominable job in that regard (in many ways, not only with respect to duration).
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Anonymous Coward, 12 May 2016 @ 1:13pm

Re: Re:
I agree lifetime is way to long, it should be no more than 15-20 years max. Copyright was never intended for heirs to live off of it for their entire lives so there's no benefit for the public for it to go to them. But until copyright is changed to something more reasonable then at least cutting it off at death is a start, even if that means you create something and a week later die it would still go to the public domain. If it was reduced to a max 15-20 years with no chance of it ever being raised then we can talk about compromising and having a copyright go to an heir if the creator did something and then died a few years later, it could then possible go to them for a limited time before going to the public domain.

None of that'll ever happen in my, my kids or my grandkids lifetime so it's all just wishful thinking that it will happen one day.
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Chris-Mouse (profile), 12 May 2016 @ 1:14pm

This sort of thing is yet another example of why I think copyright should cease at the moment of the author's death.
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Anonymous Coward, 12 May 2016 @ 1:21pm

Re: Re: Re: Re: Re:
With few well known exceptions, any length of copyright beyond ten years has little or no value because the work is outdated, there are few people interested in buying it.
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Nate (profile), 12 May 2016 @ 1:58pm

Re: It's only IP post-mortem
Also, I want to see Kelly's copyright registration paperwork for the interviews.

... crickets ...
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That One Guy (profile), 12 May 2016 @ 2:51pm

Re: Re: Re: Re: Re:
Might a longer duration have more 'worth'? Perhaps, but as the AC above notes that only really matters if the creation itself is valuable beyond a relatively short period of time, and in any case I'd say I addressed that concern with my second paragraph where I noted that if that's really the turning point, the difference between creation and nothing, the public can stand to 'miss out', as the loss of one work is almost certainly far outweighed by the works created with a shorter duration, even if those works are 'less valuable' for not lasting a century or two.
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Glenn, 12 May 2016 @ 3:53pm

"Ridiculous" and "the law" ...two terms that are mentioned in the same sentence all too often now.
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Anonymous Coward, 12 May 2016 @ 3:57pm

The original intent of copyright was as method of censorship. In the 16th century it allowed the Crown to confiscate books that were printed that did not meet the approval of the Crown. The reason it keeps being used as a method to try to censor the opinions and works of others, is because that is what it was created to do. So color me unsurprised by someone else trying to use it to censor something they dislike.
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Anonymous Coward, 12 May 2016 @ 8:10pm

If copyright is so great...
then it should be forever. If not, then let's get rid of it.
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Anonymous Coward, 12 May 2016 @ 8:23pm

Re: More to the point
Who's Gene Kelly's wife? I know of him, but until this (and even now), I don't know anything about her except she be still unknown.
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Anonymous Coward, 12 May 2016 @ 10:42pm

I like it. Anything you say which is recorded will have copyright protection until years after your death.

This is going to work out great for all those convicted felons who had statements recorded by the police and then had those same comments used against them without the courts first obtaining licensing rights.
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M. Alan Thomas II (profile), 12 May 2016 @ 10:53pm

Given that the author appears to be a fan of the subject, I'd say it's not censorship—the widow isn't trying to suppress disliked content—but rather a good old-fashioned economic monopoly. Which is, after all, the core of copyright's function, regardless of its purpose in having that function.

That doesn't mean that we haven't limited copyright such that it might not apply here, and that certainly doesn't mean that copyright's purpose is being served here, but a monopoly being used to do a monopoly's work is a monopoly and should be called out as such.

"Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. [...] I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad." —Lord Macaulay, then in the House of Commons
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Anonymous Coward, 13 May 2016 @ 1:21am

Re:
I find it pretty reasonable for the publisher of an interview to retain copyright on that interview. Most interviews are basically specialized news articles. It also helps incentivize the publisher to interview more noteworthy people.
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Anonymous Coward, 13 May 2016 @ 1:49am

If you can't tell, sarcasm ahead:

The brand old new gold-digger technique (now on a computer):
1) marry an old successful author, preferably some 45-60 years older than you
2) feed him viagra, sorry I mean sidenafil and force sex on him till he drops
3) ???
4) PROFIT (off his IPs for -at least- the next 75 years)
*WARNING: May involve having to wipe and spoon feed an old man for up to 2-300 business days.
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Anonymous Coward, 13 May 2016 @ 1:53am

Re: Re:
No, but it'll definitely motivate Mrs. Patricia to produce some "content" with some hotter younger men... ( ͡° ͜ʖ ͡°)

Okay, Now I'm just being crass...
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Anonymous Coward, 13 May 2016 @ 2:18am

Re:
Anonymous64 just hates it when due process is enforced.
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Anonymous Coward, 13 May 2016 @ 4:19am

Re:
If copyright was the only protection artists possessed your artists need to learn not to flail it around like a CoD player's e-peen. It's liable to get removed that way, jerk.
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sjheise (profile), 13 May 2016 @ 4:20am

Gene Kelly's Widow
This is the last straw from someone who says she's been writing a book on Gene for the past 20 years. Is no one else allowed to put pen to paper about Gene Kelly?

It is fine to have a copyright on a person and their image and on a few famous quotes. Martin Luther King's widow stopped some direct quotes from being used in the movie, Selma, but these were well known quotes, world famous quotes.

I, like Prof Marshall, have read an enormous amount of material on Gene Kelly, to include his interviews, books and scholarly articles. In all of that reading, there is not a particularly noteworthy quote that rises to the level of an MLK speech. Therefore, I guess if Gene said in an interview, that he loved dancing, no one could quote that in a book due to copyright infringement.

I seriously doubt Prof Marshall intends to make a dime from this book as it most likely would only be bought by hardcore Gene fans. She is simply doing it for her devotion to his great talent and as a scholarly endeavor.

Someone needs to get off their high horse and get out of the way.
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drewdad (profile), 13 May 2016 @ 5:59am

Incentivising Creativity
Two comments:

1) If Gene Kelly's estate does not retain copyright over his interviews, how will he be incentivized to perform new interviews?

2) Copyright really is incentivizing creativity, it's just that we already have enough lawyers willing to create crazy lawsuits on behalf of their crazy clients, thank-you-very-much.
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Anonymous Coward, 13 May 2016 @ 12:15pm

She's dancing on his grave,

She's dancing on his grave,

What a marvellous feeling,

she's making money again!
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Cynthia Meyers (profile), 13 May 2016 @ 7:10pm

Fear in academic publishing
As a fellow scholar of media history, I have seen this kind of copyright maximalism infect the field. Many publishers are adamant that scholars request "permission" for materials that ought to fall under "fair use." I have had several go-rounds with journals and university presses. I believe that academic publishers ought to stand up for "fair use" in scholarship but many are too afraid of lawsuits and have few resources to fight them. I hope the University Press of Mississippi does not cave in to these threats but I won't be surprised if they do. So sad that a scholarly book project that helps illuminate an artist's legacy is punished for doing exactly what scholarship should do.
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Anonymous Coward, 16 May 2016 @ 12:36am

Re: Re: Re:
To be fair, when you consider all the policies that have been shat out in the name of copyright over the last decade or two, it wouldn't be a surprise to learn that a lot of cocksucking was done behind the scenes...
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JoshuaStanley (profile), 8 Apr 2020 @ 4:59am

Copyright scam
Such a shame to use their "copyright card". Many authors should use more tips here from professional writers to know all of the tricks in copyright laws. Maybe copyright rights should be rewatched in moments like this.
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