Hotfile Claims Warner Bros. Issued Takedowns On Content It Had No Copyright Over

from the uh-ohs dept

The legal battle between cyberlocker Hotfile and the MPAA continues to heat up. After a judge severely undercut a key claim of the MPAA, the MPAA has been acting petulantly, refusing to hand over certain documents under discovery to Hotfile. The MPAA claims it would reveal their secret "anti-piracy" plans... but the real issue may be that Hotfile believes that Warner Bros. used Hotfile's takedown tool to remove content over which it had no copyright. That would be a no-no and would certainly make the case that much more interesting...

Filed Under: dmca, takedown
Companies: hotfile, mpaa, warner bros.

Wizard Of Oz Court Ruling Suggests Moviemakers Can Reclaim Parts Of The Public Domain And Put It Under Copyright

from the we're-not-in-kansas-any-more,-toto dept

Another day, another story of the law letting the public domain be locked up. Back in February, we wrote about an important case about the public domain involving The Wizard of Oz and some other films. Prior to 1976, of course, you had to register works to have them covered by copyright. A company named AVELA recognized that some publicity posters for The Wizard of Oz, Gone with the Wind and some Tom and Jerry cartoons were not registered (or in some cases, were registered, but not renewed), and thus were officially in the public domain. It then made t-shirts out of some of the images in the poster. The lower court gave a very confused ruling, in which it admitted the original posters were in the public domain, but then said the characters were still copyrighted, even though the movies came out later, because that imbued new characteristics on the public domain works and protected them. Or something. Making this even more complicated, when it comes to the Wizard of Oz, is that the original books are definitively in the public domain, but the original movie is not.

On appeal, the Eighth Circuit court seems to have more or less supported the original ruling, though with different reasoning. The court does say that the publicity materials are in the public domain. But then says that the new works (the designs on the t-shirt) results in a derivative work that "comes into conflict with a valid copyright." Conceptually that makes sense. You can't take a public domain work and then assume that gives you free reign to bring in other copyrighted work. But it's troubling to see how the court then concludes that such derivative works occur in this case. It basically says that because the actors in the movie imbued the characters with specific traits beyond what was in the original works, even the use of still images that are public domain can infringe on the copyrights of the depictions of those characters.

We agree with the district court’s conclusion that Dorothy, Tin Man, Cowardly Lion, and Scarecrow from The Wizard of Oz, Scarlett O’Hara and Rhett Butler from Gone with the Wind, and Tom and Jerry each exhibit “consistent, widely identifiable traits” in the films that are sufficiently distinctive to merit character protection under the respective film copyrights....

AVELA correctly points out that the scope of copyright protection for the characters in the films The Wizard of Oz and Gone with the Wind is limited to the increments of character expression in the films that go beyond the character expression in the books on which they were based. See Silverman, 870 F.2d at 49 (“[C]opyrights in derivative works secure protection only for the incremental additions of originality contributed by the authors of the derivative works.”). While true, this has little practical effect in the instant case, as a book’s description of a character generally anticipates very little of the expression of the character in film....

The film actors’ portrayals of the characters at issue here appear to rely upon elements of expression far beyond the dialogue and descriptions in the books. AVELA has identified no instance in which the distinctive mannerisms, facial expressions, voice, or speech patterns of a film character are anticipated in the corresponding book by a literary description that evokes, to any significant extent, what the actor portrayed. Put more simply, there is no evidence that one would be able to visualize the distinctive details of, for example, Clark Gable’s performance before watching the movie Gone with the Wind, even if one had read the book beforehand. At the very least, the scope of the film copyrights covers all visual depictions of the film characters at issue, except for any aspects of the characters that were injected into the public domain by the publicity materials.

As THREsq notes, it's this section above that may be sending Hollywood lawyers into a bit of a tizzy as it appears to potentially extend the encroachment on the public domain, by suggesting that any general "character" traits that are added by a film adaptation, even of a public domain work, can be copyrighted. Considering there are a bunch of adaptations being made of The Wizard of Oz based on the public domain books, some lawyers are worried that this ruling gives Warner Bros. leverage over those other movies:

As we noted in our past article on this topic, there are nine Wizard of Oz projects currently in development, by one count, including a big-budget 3D film by Disney directed by Sam Raimi and starring James Franco that's meant to be a prequel to the classic film.

Might these films have to be very, very careful going forward?

One lawyer believes so.

"The court's statement that the film copyrights cover 'all visual depictions' of the characters recognizes that there is often a quintessential version of a literary character that exists in the public's mind as a result of a popular film adaption," says Aaron Moss, the chair of litigation at Greenberg Glusker. " Any filmmaker that wants to create a new version of a literary work -- even one in the public domain -- needs to be careful not to use copyrightable elements of characters that first appear in protected motion picture versions of the works. Of course, when it comes to characters depicted by live actors, this may be easier said than done."

In case you didn't get that, if you were to create a movie Wizard of Oz entirely based on the book, if one of the actors does pretty much anything that suggests a similarity to the movie version, rather than the book version, it could be infringing. At the very least, this completely rules out any attempt to make a nod or homage towards the original film. But, more importantly, if just in the nature of being an actor, one of the actors imbues one of these characters with similar traits to the 1939 movie... that can be infringing.

And that's insane. That goes way beyond the intent of copyright law, and again seems to destroy the laughable notion that there's a real split between protection of ideas and expression.

Filed Under: copyright, public domain, wizard of oz
Companies: warner bros.

Is The Mike Tyson Tattoo On Ed Helms A Parody?

from the it-should-be dept

We just wrote about how the judge in the Hangover 2/Mike Tyson tattoo copyright case had said that she wouldn't block the release of the movie, but would let the lawsuit proceed and indicated that the tattoo artist would likely prevail. I thought she just meant on proving the initial infringement, but other reports are saying that pretty clearly mocked Warner Bros.' defenses, including fair use on the tattoo:

Judge Perry briefly discussed the defense's claim of Fair Use, opining that there was no parody or transformative use, the entire tattoo in its original form was used (not in any parody form), the tattoo was not necessary to the basic plot of the movie, and that Warner Brothers used the tattoo substantially in its marketing of the movie.

This seems problematic for a bunch of reasons, but one part that troubles me (and we had some of this discussion in our comments) is whether or not the tattoo is parody. Frankly, I can't see how it's not parody. The reason that people claim that it's not transformative or parody is that it's an identical copy and thus isn't parodying the original tattoo. But that seems entirely wrong. While it's the tattoo itself that's copyrighted, you have to look at the context of the tattoo -- and in this case that includes the fact that it's on Mike Tyson's face. Putting it on Ed Helms' character (in many ways the antithesis of Tyson's character) is a clear parody of Tyson and his tattoo. I have trouble seeing how you could argue otherwise. If the point of the tattoo on Helms' face wasn't to parody the same tattoo on Tyson's face, then what's the joke here? Along those lines, it seems like you could also make the case that it's clearly transformative, in that the original "expression" is the tattoo on Tyson's face. Moving that tattoo -- even if identical -- to Helms' face significantly transforms the tattoo into saying something entirely different. Ignoring the fact that the tattoo goes hand in hand with whose face its on doesn't make any sense at all, and suggests a misreading of the intentions of the fair use setup.

Finally, I have trouble believing the argument that this would somehow negatively impact "the market" for S. Victor Whitmill's "work." Just what is that "market"? How many people want the same tattoo that's on Mike Tyson's face? If anything, it seems like the movie might (if only so slightly) increase the market, rather than diminish it.

The whole case seems like a joke, and the judge's initial comments seem really out of line with the basics of copyright law.

Filed Under: copyright, ed helms, fair use, mike tyson, tattoo, victor whitmill
Companies: warner bros.

Judge: Hangover 2 Can Still Be Released; But Tattoo Artist May Prevail In The End

from the fair-use-is-dead dept

About a month ago, we wrote about tattoo artist S. Victor Whitmill suing Warner Bros. for violating his copyright on the tattoo on Mike Tyson's face, since a similar tattoo is used on Ed Helms' face in the movie (Tyson also appears in the movie, but I guess that use is somehow "licensed"). There was some attention paid to the fact that Warner Bros. made a "fair use" claim in its response to the lawsuit, but the entertainment industry regularly claims fair use, so that didn't seem all that odd or surprising. The key early question was whether or not the judge would issue an injunction, halting the release of the movie this week, which would have cost Warner Bros. a ridiculous amount of money considering all of the marketing going into the release.

Thankfully, the judge has denied the request for an injunction, meaning that the movie will still be released. However, she does note that Whitmill has "a strong likelihood of ultimately succeeding on the merits of the case." I find that to be a bit troubling as well, but we'll see how the case goes. Of course, if you accept that fair use is not a right, but just a defense, it is possible to see how Whitmill may succeed in showing infringement, while Warner Bros. could still win with a fair use defense. Still, the whole thing seems pretty ridiculous. If Whitmill still wins, he could receive a large chunk of money in an award and could still get an injunction for future releases (DVD, cable, etc.). Over a parody tattoo.

Of course, there's a clear element of Warner Bros., a leading proponent of stricter copyright enforcement, being hoisted on its own petard, in this case, but it seems unlikely that anyone at Warner Bros. has the self-awareness necessary to recognize that its own constant refrain about the importance of "protecting" copyright is part of what now puts it in this position.

Filed Under: copyright, ed helms, mike tyson, tattoo, victor whitmill
Companies: warner bros.

Guy Who Did Mike Tyson's Tattoo Sues Warner Bros. For Copyright Infringement

from the well-that-was-quick dept

It really was just a couple of weeks ago that we asked the (we thought) hypothetical question of who owns the copyright on a tattoo, and noted it would be a good question for a law school exam. We did mention one case, but it was settled out of court. Now we may have another. Apparently the artist who designed the tattoo on Mike Tyson's face is suing Warner Bros. and seeking an injunction to block the studio from releasing the upcoming movie The Hangover 2. In that movie, Ed Helms apparently ends up with a tattoo quite similar to Tyson's (Tyson appeared in the first Hangover movie). The tattoo artist, S. Victor Whitmill, did in fact register the design with the Copyright Office, and even got Mike Tyson to sign a release making it clear that Whitmill retained the copyright on the work. I would think that Warner Bros. has a number of potential defenses here, including parody fair use. It's certainly difficult to claim that this movie in any way diminishes the market for the original tattoo. My guess is that there may be some sort of quick settlement with Warner Bros. paying off Whitmill to make this go away, which is exactly what Whitmill wants. However, if it does go to court, we can see how good all of you were at answering that law school exam question we posited...

Filed Under: copyright, ed helms, mike tyson, tattoo, victor whitmillq
Companies: warner bros.

Heirs Of Superman Creators Appeal To Try To Get The Half Of The Baby The Judge Didn't Give Them

from the how-super-is-that dept

We've been following the various legal battles over copyright termination rights with great interest, as it's a pretty big meteor heading towards various content companies -- especially record labels (why do you think Bronfman wants to sell Warner Music?) and movie studios. If you're unfamiliar with the deal, it's a bit complex and down in the weeds, but a (greatly) simplified version is that current copyright law lets the original creators of works have a termination right in those works, meaning that after a certain period of time, they can "reclaim" those works, and basically take back the copyright if they originally had assigned it to someone else (such as a big company). This right cannot be negotiated away. There is a big exception, however, which is that it doesn't apply to "works for hire" (and a few other exceptions which we won't get into). Of course, the exceptions were decided somewhat randomly, basically by whose lobbyists were the loudest at the time.

For years, the record labels regretted not having label musicians included as "works-for-hire," eventually leading to the famous case of a staffer sneaking language into an unrelated bill in the middle of the night, which extended such rules to musicians. That plan almost worked until musicians found out about it, freaked out, and had the law very quickly rolled back. I tend to think that termination rights are silly and really don't make that much sense to me. However, they're a symptom of the real problem: which is that copyright law is too damn long. Thus given the existing length of copyright, then I can see that termination rights are better than no such rights, because at least it gets the copyright back to the artist (or the artist's heirs), and if someone has to have such unnecessary monopoly protections, it might as well be the artist.

The issue is that an awful lot of these terminations are about to come due, and the entertainment industry is, to put it mildly, freaking out. The big case to follow has been the one trying to terminate the rights to Superman by the heirs of Superman's creators Jerry Siegel and Joe Shuster. In 2009, the court sided with the estate of Jerry Siegel, deciding that Superman wasn't a work for hire, and thus the termination rights existed. However, the court did a bit of Solomonic baby-splicing, in that it made it clear that the terminations could only cover certain parts of Superman. However, that's apparently presenting something of a problem for the heirs (and the lawyer, Marc Toberoff, who many consider to be the main driving force behind these terminations, and who had set up a business to exploit such "reclaimed" rights). So, they're appealing, to try to get even more rights. As THREsq explains:

Throughout years of legal maneuvers (including Warners' still-pending lawsuit against the heirs' lawyer Marc Toberoff for allegedly interfering with contracts), it has never been determined whether the Shusters and Siegels can take back other key elements of the Superman mythology, such as Lex Luthor and Kryptonite.

That makes it difficult for Toberoff and his clients to peddle Superman rights to another studio (and pressure Warners into a settlement). So he's now appealing the limited grant of rights to the 9th Circuit, hoping that the appeals court will finally determine who owns what.

"It's cutting to the chase," Toberoff us, adding "it is widely recognized that Judge Larson's rulings on summary judgment largely favored the Siegels in upholding the validity of their termination as to Action Comics No.1, containing the core Superman format and characters."

Of course, the better question is why Superman isn't in the public domain by now.

Filed Under: copyright, marc toberoff, superman, termination
Companies: warner bros.

Evidence Suggests Major Film Studios Uploading Movie Clips To YouTube... Pretending To Be Pirated

from the but-of-course dept

One of the tidbits that came out of the YouTube/Viacom lawsuit was the fact that Viacom quite frequently would upload its own clips to YouTube, but did so trying to pretend they were pirated clips. In fact, they would send employees out of Viacom's offices to local printshops to upload the videos under childish sounding names, like "MMysticalGirl8, Demansr, tesderiw, GossipGirl40, Snackboard and Keithhn," to make people think they were pirated copies. Not surprisingly, it appears that Viacom was not alone in this tactic. Slashdot points us to an analysis that certainly suggests that pretty much all of the major film studios were doing the exact same thing. There are surprisingly long and clear clips of various movies, uploaded at times perfectly coinciding with major marketing campaigns, and sometimes they can even be connected (with some digging) to marketing firms. Sorta takes the sting out of the claims that YouTube clips are so damaging, doesn't it?

Filed Under: movies, studios, youtube
Companies: disney, viacom, warner bros.

Warner Bros. Smarter Than The Average Studio? Won't Fight Yogi Bear Parody

from the well-that's-nice dept

We recently pointed to an amusingly dark parody ending to the new Yogi Bear movie, which was getting a lot of attention -- and wondered how Warner Bros. would react to it. Warner Bros. General Counsel has been upfront in the past, saying that they try not to shut down "fan art" unless it really goes over the line, but the company's actions don't always live up to that. In this case, however, the good news is that Warner Bros. has said that it won't fight the parody video and will let it live on. It just asked the artist to put a specific disclaimer on the video (which he did). The studio did ask YouTube if it could put an age limit on the video, because it was afraid of kids seeing Yogi get shot... but that didn't happen and WB still seems okay with. So, kudos to Warner Bros. for not overreacting. It's sad that it still needs to be highlighted when some of these firms don't overreact, but hopefully it means they're learning.

Filed Under: copyright, fair use, parody, yogi bear
Companies: warner bros.

Yogi Bear Alternative Ending Creates A 'Squiffy' Fair Use Question

from the not-your-average-parody dept

A bunch of folks have been sending in this viral video of an "alternate ending" to the new Yogi Bear movie. It's what you might call a... much "darker" ending, based on the The Assassination of Jesse James by the Coward Robert Ford. Don't watch this if you don't like bear-on-bear violence. What struck me, frankly, is the somewhat amazing quality of the work, which was done by a single guy, Edmund Earle, who had the idea for the parody after seeing the trailer for the Yogi Bear film right after having watched The Assssination of.... The Wall Street Journal scored an interview with Earle, where he admits that he's on "squiffy" legal ground, though he's not using any actual footage from the movie but created the work himself, and believes he's done so entirely as a parody. What will be interesting is how Warner Bros. reacts to this. It seems like it should be protected fair use, of course, but Hollywood isn't always known for being supporters of fair use.

Filed Under: copyright, fair use, parody, yogi bear
Companies: warner bros.

Warner Bros. Finally Realizes That 'Pirates' Are Underserved Customers

from the took-you-this-long? dept

We've discussed in the past just how backwards Warner Bros. has been at times in responding to "piracy." So it's a bit amusing that many, many, many years after plenty of us have been pointing this out (and have been told directly by folks at Warner Bros. that we're "full of it") that the company is finally recognizing that those who infringe are really just underserved customers, whom they didn't give a good reason to buy:

Pirates Make Purchases: Few subsist on copyright infringement alone; typical pirates steal in addition to making legitimate entertainment purchases like boxoffice, DVD and even online transactions. Even the most diehard pirates spend some money, though less than more casual infringers. "One of the main things we're doing is looking at why they do things legitimately on certain products and not on others," said [WB's director of business intelligence, Ben] Karakunnel.

Apparently, they just started looking at this data only 18 months ago. Frankly, the fact that they weren't looking at that data seven or eight years ago suggests a dysfunctional management team. What's really silly, of course, is that plenty of folks have made this exact point to people at Warner Bros. and elsewhere for years, and were told that we were just "defending pirates."

Another thing they realized was that in foreign markets, a lot of unauthorized copies are because WB didn't make translated/subtitled versions available quickly enough -- another point that sites like ours have been making for years and which WB just figured out:

In the international markets, illegal WB content in which pirates dub or subtitle themselves is increasingly popular. For one unspecified program Karakunnel used as an example, it wasn't until the third day after its initial airdate that one such pirate-created translated version accounted for 23% of pirated files of that particular program. By day 10, it accounted for 74%.

Said Karakunnel, "If we can get dubbed or subtitled language versions in the first two days, we can beat them to the punch."

Kudos to Warner Bros. for finally figuring this out, but it's pretty amusing that the company thinks this is new, when just a couple years ago it was denying that any of this was possible.

Filed Under: customers, movies, pirates
Companies: warner bros.