Texas Grand Jury Indicts Netflix For 'Lewd Exhibition' Of Children In Its Movie 'Cuties'

from the child-beauty-pageants-expected-to-remain-unaffected dept

It seems impossible that 2020 could get any stupider. But here we are, watching in bemusement as a showboating prosecutor talks a grand jury in a tiny Texas county into indicting an online streaming service for… let's check the record… "promotion of lewd visual material depicting child."

Here's "liberty loving conservative" (and state rep) Matt Schaefer's tweet, which contains a snapshot of the indictment.

Here's what the tweet says above the indictment photo:

Netflix, Inc. indicted by grand jury in Tyler Co., Tx for promoting material in Cuties film which depicts lewd exhibition of pubic area of a clothed or partially clothed child who was younger than 18 yrs of age which appeals to the prurient interest in sex

Go ahead and jump to the replies if you enjoy watching a bunch of people who don't understand the First Amendment or state law cheer on this showy act of futility.

The indictment [PDF] states that Netflix broke the law by distributing the film "Cuties" via its streaming service. Jurisdiction is presumably proper because even Tyler County residents can subscribe to the service. If you're not familiar with "Cuties," it's a coming-of-age film dealing with a Sengalese preteen who begins to emulate the sexualization of other females while growing up as a Muslim in Paris, France. It won awards at the Sundance Film Festival and flew under the radar until Netflix began its promotion of the film, which centered on the more questionable depictions of underage girls engaging in hyper-sexualized behavior.

All hell broke loose for a few weeks last month. Calls to boycott Netflix filled social media services and a number of US politicians decided this was the thing they should be spending their time on as thousands died from COVID, businesses closed forever and unemployment remained high.

Here's just some of the legislative-level furor that followed Netflix's release of the film.

Senator Bob Hall (R-Canton) swore to file a bill that would outlaw pedophilia in the state constitution, Texas Attorney General Ken Paxton joined two other state attorney generals in a letter asking Netflix to remove the film, and U.S. Senator Ted Cruz (R-TX) asked U.S. Attorney General William Barr to investigate the company for “the filming of minors engaging in sexually explicit conduct.” State Rep. James White (R-Tyler) likewise wrote Paxton asking for an investigation into the film.

Now that we're all caught up, let's look at the indictment and see if we can find the fatal flaw:

"Knowingly promote[d] visual material which depicts the lewd exhibition of the genitals or pubic area of a clothed or partially clothed child who was younger than 18 years of age at the time the visual material was created, which appeals to the prurient interest in sex, and has no serious literary, artistic, political, or scientific value…"

Anyone can get an indictment. This much is known about grand juries. But securing a conviction is going to be a hell of a lot more difficult. The prosecutor is going to have to convince a judge (and possibly a jury) that a film that won awards at an international film festival contains no "serious literary or artistic value." That's even harder to argue under the Miller test erected by the Supreme Court, which says the work as a whole has to be considered in terms of artistic merits, not just the cringier parts that prompted backlash all over the internet. That should be enough to nullify the criminal case Tyler County DA Lucas Babin is bringing against Netflix.

There's some pandering going on here, but it originates in the prosecutor's office. This will score points with the kind of people willing to award points for performative wastes of public funds. No one else will be affected. "Cuties" will enjoy another few days of internet infamy, along with its US distributor. But no one's going to jail because Netflix distributed this movie, no matter how much one prosecutor wants it to happen.

Filed Under: cuties, documentary, indictment, moral panic, texas
Companies: netflix

The Social Dilemma Manipulates You With Misinformation As It Tries To Warn You Of Manipulation By Misinformation

from the it's-not-good dept

There's been a lot of buzz lately about the Netflix Documentary The Social Dilemma, which we've been told reveals to us "the dangerous human impact of social networking, with tech experts sounding the alarm on their own creations." I know that the documentary has generated widespread discussion -- especially among those not in the tech space. But there's a problem with the film: nearly everything it claims social media platforms do -- manipulating people with misinformation -- the film does itself. It is horribly one-sided, frequently misrepresents some fairly basic things, and then uses straight up misinformation to argue that social media has some sort of godlike control on the people who use it. It's nonsense.

Also, I should note that nowhere do they mention that Netflix, the company which funded produced, distributed and widely promoted the documentary, is also arguably the first big internet company to spend time, money, and resources on trying to perfect the "recommendation algorithm" that is at the heart of the film's argument that these internet companies are evil. I guess some folks no longer remember, but a decade ago, Netflix even held a huge $1 million prize contest asking anyone to try to build a better recommendation algorithm. (Update: it has been claimed that despite this being a "Netflix original" and widely promoted and distributed by Netflix as such, that Netflix did not "fund" the film, which doesn't really change anything here, given everything else Netflix has done to make this film widely seen.)

There are a number of reasons to complain about what is portrayed in the film, but I'll highlight just a few key ones. One narrative device that is used throughout the film is that it has these weird... not quite "re-enactments" but odd "afterschool special"-style fictional clips of a family with kids who really use social media a lot. And, yes, there are plenty of kids out there who have trouble putting down their phones/tablets -- and there are reasons to be concerned about that (or at least to investigate the larger ramifications of it). But the film not only exaggerates them to a ridiculous degree reminiscent of Reefer Madness type of moral panic propaganda, but it repeatedly suggests (1) that social media can ruin a kid's life in like two days, and (2) that social media can, within a matter of a week or two, turn an ordinary teen into a radicalized hate monger who will join in-person mobs (leading to arrest).

Even worse, the fictional clips go a level deeper, trying to anthropomorphize the evil "algorithm" in the form of three white dudes standing... on the deck of the Starship Enterprise? Or some other weird sci-fi trope:

Throughout the film, these three guys and their weird computer-ish controls in front of them are shown trying to "increase engagement" of the son in the family through any means necessary -- including magically forcing some girl they think he likes to interact with him. And, I'm sorry, but that's... not how any of this works.

It is literally emotionally engaging misinformation designed to impact our beliefs and actions. In other words, the same thing that the film claims social media companies are doing.

But it's also the same thing any company has tried to do in the past through... advertising. One theme that runs throughout the film, and is dead wrong, is the idea that social media advertising can somehow "control" you. And... uh... no. Come on. Social media advertising is a joke. Can it better target some ads? Sure thing, and if those ads target stuff you actually find useful, then... that's a good thing? But, most social media advertising is still garbage. It's why so many of us block or ignore ads. Because they're still just not that good.

The film is really designed to showcase Tristan Harris, who probably takes up 1/3 of the screen time. Tristan made his name by being the internal "ethicist" at Google for a little while before setting out on his own to become the high prophet of "internet companies are trying to manipulate us!" But, as others have pointed out, Tristan has a habit of vastly exaggerating things, or being misleading himself. As just one example, highlighted by Antonio Garcia-Martinez in his must-read dismantling of the film, is that Harris argues that we didn't have these same problems with earlier technologies -- like the bicycle. But as Antonio points out, there was, in fact, quite a large moral panic about the bicycle, and the Pessimist's Archive makes the point quite clearly in this little clip:

As we've discussed for years, pretty much every new form of technology or entertainment -- including the waltz, chess, the telephone and more -- has resulted in similar moral panics, almost none of which proved to be accurate.

That doesn't mean that there aren't important concerns and messages that we ought to think about regarding the design of the internet and the various services we use. But the problem is that this film totally fails to adequately address any of those concerns and uses exactly the wrong messengers to bring the message. The vast majority of the talking heads in the film are former (and in some cases) current employees from the big tech companies who "regret" what happened with what they built. But they don't seem to have any more of an idea of what to do other than "put down your phone," which like "just say no" drug campaigns and sex-abstinence education programs have long been proven to be absolutely useless.

Also, it should be noted that the guy who gets the second most amount of screen time, former Facebook employee and Pinterest CEO Tim Kendall, currently is CEO of a company that tries to help you limit your phone time usage. Anyone think he has, perhaps, alternative motives to play up how "addictive" he made Facebook and Pinterest?

Notably, in nearly every case, the film takes the most nefarious and extreme explanations for what is happening at social media companies. At no time does it present a single person who offers a counterpoint, or suggests that the descriptions in the film are exaggerated and misleading. Again, all it does is use misinformation and manipulation to warn you about other tech companies supposedly using misinformation to manipulate.

On top of that, as many people have noted, there are many, many activists and experts -- though frequently not white male former tech bros in t-shirts -- who have been working on actual ways to improve technology and services, and to provide real solutions. But the film ignores all of them as well.

The entire conceit of the film is that these few tech giants (again, notably not Netflix, despite it being the leader in recommendation algorithms) have some sort of "total control" on the minds and actions of people. There's some nonsense in there from Harvard professor Shoshana Zuboff, coiner of the term "Surveillance Capitalism" which always feels like a useful phrase until you dig in and realize that Zuboff has less than no clue about how the internet actually works. She insists that these companies are selling "human futures" which... is... not... how any of this works.

As Antonio summarizes, Zuboff seems to think that Silicon Valley is doing magic that it is not doing. This is akin to Josh Hawley last week arguing that the tech platforms have "total control" over our brains and our voting abilities:

Less diplomatically, everything Zuboff says is a nonsensical non sequitur.

”This is a world of certainty.”

Then why am I, crusty ad tech veteran, building probabilistic models all day?

“This is a totally new world.”

No it isn’t. I was there, at Facebook when it happened. We copied it all from the direct-mail people who’ve done it for decades.

“They’re trading human futures like we do pork-belly futures.”

Lolwut?

The CBC's coverage of the film, rightly points out that the film is greatly exaggerating reality to the point of it being misinformation.

One of the ways the documentary represents surveillance, Chun noted, is by using three human actors trying to entice someone to use their phone and stay on social media longer. Along with their presentation of social media as an addiction ("there's a difference between a habit and an addiction" Chun said) is the fear that is created when people think that real humans have access to all of their information, instead of algorithms that predict human behavior.

Though Chun argued users should not be tracked, she said the idea that algorithms know "everything" about you isn't correct. She argued the film itself is based on revealing "open secrets," and the information these services use to present personalized ads doesn't reflect a deep knowledge of users.

"The idea that somehow they control you is overblown," she said. "At the same time, you can say that a lot of what they know about you is accurate. But then the question you have to ask yourself is: So what?"

Indeed, the claims about "addiction" are so overblown as to be laughable. The film repeatedly argues that once you're addicted to social media these companies can change your thoughts. But... that's not what addiction is or how it works. It's not brainwashing.

Anyway, there were many more things wrong with it -- and even if people can agree that there are some significant problems with the internet of today, I have a hard time believing that the way you fix manipulation and misinformation is by creating a documentary that is full of misinformation and designed to manipulate emotionally people into believing things that just aren't true.

Filed Under: documentary, manipulation, misinformation, social dilemma, social media, surveillance capitalism, tristan harris
Companies: facebook, google, netflix, twitter, youtube

Ghosh Yoga College Claims Copyright Infringement Over Netflix Documentary On Bikram Choudhury

from the hot-fair-use dept

While the volume isn't enormous, I would still say that there are entirely too many Techdirt posts on the topic of yoga. Most of those center around yoga instructors somehow thinking that a specific progression of yoga poses is somehow deserving of copyright protection or patents. The whole thing feels antithetical to yoga practices to begin with, which are at least in part about bringing a calm spiritual experience into a healthy living style. Paywalling that is an odd choice.

But it gets all the more strange when a yoga organization somehow thinks that a documentary using footage to tell its story runs afoul of copyright law. That is what's happening in a public war of words between Netflix and Ghosh's Yoga College, where Bikram Choudhury studied early in his career. The documentary is entitled Bikram: Yogi, Guru, Predator, and it details the story of Choudhury and accusations from those in his classes that he'd used racist invective and has been sexually inappropriate towards them. Where Ghosh's Yoga College comes in, however, is to complain publicly that the film used video of Choudhury practicing at its facilities.

Ghosh’s Yoga College, based in Kolkata, is claiming video footage and photographs used in the film is actually theirs, and want its immediate removal, according to the report.  In the film, early footage of Choudhury learning yoga at the school is aired as he attended the site and built his craft.

“For the past four years, I have worked hand in hand with Ghosh’s Yoga College as one of only three people who have permission to use family specific photos and material to preserve the legacy of Bishnu Charan Ghosh,” Ida Jo, ambassador for Ghosh’s Yoga College, told Metro in an interview. “They trust me to represent them around the world.

“When the production team reached out to me to get photos and materials for their new film about Bikram Choudhury, I relayed this information to the Ghosh family,” she added. “They said they had no interest in being involved. I told the filmmakers ‘No.’ Despite explicitly telling the producers they would need permission to use materials owned by Ghosh’s Yoga College, including photos and the contents of Yoga Cure, they used them anyway.”

Perhaps we need to invent a "fair use" yoga pose. I'm not sure what that would look like, but I'd certainly expect to see Netflix strike such a pose if any legal action is initiated here. The college can claim protection on these images all it likes, but Netflix would surely have a strong Fair Use case if it got to court. Bikram Choudhury is undoubtedly a public and controversial figure. Suggesting that historical footage of such a person could be walled off through a permission structure, particularly given that footage's relevance to the documentary material, would be crazy.

The public comments from Jo thus far read like a copyright dispute, but any such dispute would run squarely into fair use. More likely, the college probably would prefer its name not be associated in the film with the controversial Choudhury and is flailing around trying to figure out a way to keep that from occurring.

Unfortunately, that's not how copyright law in America works.

Filed Under: bikram choudhury, copyright, documentary, fair use, yoga
Companies: ghosh's yoga college, netflix

California Court Dismisses Copyright Suit Against BBC Over Cosby Documentary Over Lack Of Jurisdiction

from the hey-hey-hey dept

Late last year, we covered a very odd lawsuit brought against the BBC by the production team for The Cosby Show centering around a BBC documentary covering Bill Cosby's fall from grace in America. Bill Cosby: Fall of an American Icon used several short clips from The Cosby Show, altogether totaling less than four minutes of run-time, and all of them used to provide context to Cosby's once-held status as an American public figure in good standing. Despite the BBC distributing the documentary exclusively overseas, production company Casey-Werner filed its suit in California. Whatever the geography around the legal action, we argued at the time that the BBC's actions were as clear a case of fair use as we'd ever seen.

It seems that legal argument will not be answered in this suit, however, as the court has decided instead to simply dismiss over a lack of jurisdiction. While the BBC's filings had indeed hinted at a forthcoming fair use defense, it also argued that the California court had no business adjudicating this matter to begin with.

BBC argued no actionable infringement could possibly have taken place within a California federal court's jurisdiction because the documentary was only broadcast in the U.K., and while Fall of an American Icon was later available via the BBC’s iPlayer, "geoblocking" prevented it from being seen in the United States absent use of virtual private networks or proxy servers to evade restrictions.

In response, Casey-Werner argued essentially that everyone knows that geo-blocking doesn't work and is easily defeated by the use of a VPN or DNS proxy. And, hey, that's true, except that the failures of geo-blocking technology doesn't give rise to jurisdiction by a California court. Only the BBC's direct action in getting this content stateside would do that and the BBC clearly took steps specifically to avoid that happening. From Judge Percy Anderson's ruling:

That some California individuals may have viewed the Program does not establish that Defendants directed their conduct toward California, particularly because any viewership in California occurred despite Defendants’ intentions and their efforts to prevent it.

Unauthorized viewers outside of the United Kingdom do not provide a basis for personal jurisdiction; rather, Defendants’ relationship with California must arise out of contacts that they themselves created with the state. … Moreover, Plaintiff neither alleges nor offers actual evidence of the extent of viewership of the Program in California.

And so the court never takes on the question of whether this is fair use or not, which it most certainly is. That we never got to that stage says a great deal more about the quality of Casey-Werner's legal team than it does about the protections the BBC sit comfortably behind. The case was dismissed without prejudice, and Casey-Werner could always try to file another lawsuit in the U.K., but it would do well to drop this whole thing and lick its wounds instead.

Filed Under: copyright, cosby show, documentary, jurisdiction, uk
Companies: bbc, casey-werner

Lawsuit Brought By Cosby Show Production Company Against Documentary Is The Reason We Have Fair Use

from the textbook dept

Looking through the history of our posts on the topics of fair use and fair dealing, you find plenty of examples for why these exceptions to copyright law are so important. These exceptions are, at their heart, designed to be boons to the public in the form of an increased output in creative expression, educational material, and public commentary on matters of public interest by untethering the more restrictive aspects of copyright law from those efforts. Without fair use and fair dealing, copyright laws are open for use as weapons of censorship against unwanted content, rather than being used for their original purpose of increasing expression and content. Still, in the history of those posts, you might struggle to find what you would consider the perfect example of why fair use laws are necessary.

Well, look no more, because we have that example in the case of the production company behind The Cosby Show suing the makers of a documentary entitled Bill Cosby: Fall of an American Icon.

The production company that made The Cosby Show has sued the BBC (.pdf) over a documentary the British network aired about the rape allegations against Bill Cosby. Carsey-Werner, the production company that is the plaintiff in the case, says that the documentary is infringing its copyright because it uses eight audiovisual clips and two musical cues from The Cosby Show

The complaint lists eight video clips that are used in the documentary. All are between seven and 23 seconds long, except for one clip that lasts 51 seconds. Adding together the time that viewers are either seeing a clip or listening to one of the musical cues, lawyers for the plaintiff say that "the Infringed Works were either seen or heard (or both) in Fall for a total of 234 seconds," or a total of 6.5% of the hour-long documentary.

Those clips, totaling less than four minutes of total run-time, were enough for the Carsey-Werner Company to file this suit, complaining that the clips were unlicensed and, therefore, infringing upon its copyright of the show. The complaint also insists that the documentary could have and should have been made without those clips at all, indicating that this is not a fight over lost licensing revenue, but the use of the clips at all. Even more absurdly, the complaint claims that the documentary used the clips because the filmmakers knew that clips of The Cosby Show would "appeal to viewers."

Anyone with a cursory knowledge of fair use laws will realize that the use of the clips in this case is obviously protected for any number of reasons. The clips are short in length and in no way compete with the original show. The purpose of using the clips is not to compete with the show at all, in any case. Finally, the use of the clips is undertaken as part of a commentary on a public and maligned figure in Bill Cosby. Literally everything about this screams for a fair use defense, all the way up to and including the fact that the clips weren't used to "appeal" to viewers at all, but rather to show Cosby's one-time status as an American icon and, I surmise, to give viewers the impression that watching the shows knowing what we know now is just kind of gross. There's simply no way to make this documentary properly without including some clips of the show.

Norma Acland, Carsey-Werner's general counsel, seemed to acknowledge as much when asked if any licensing agreement would even have been entertained.

When I suggested Carsey-Werner might decline to license any clips at all for a documentary about criminal allegations against Bill Cosby, Acland said the right to decline licensing is "one of the major parts of being a copyright owner, isn't it?"

Asked whether Carsey-Werner would have agreed to license clips for the documentary at all, Acland said, "I don't know the answer to that. But at least we would have had the choice, wouldn't we?"

Except that removing that choice from the copyright holder is the very purpose of fair use laws. And it's important too. The Cosby documentary is a perfect example of this: it's about a public figure involved in allegations of sex crimes that are certainly in the public interest, therefore no commentary should be under threat by the copyright holder of that public figure's work. To suggest otherwise is plainly against the public interest and, frankly, more than a bit crazy.

I asked Acland if she was concerned about the possible implications on freedom of speech if copyright owners could stop documentarians from using television clips without permission and payment.

"I didn't realize you wanted to have a conversation about that," she said, declining to answer questions related to free speech.

One imagines Acland will be forced to speak on this topic at trial, should it ever get that far.

Filed Under: bill cosby, copyright, documentary, fair use, the cosby show
Companies: carsey-werner

Creator Of Arguably The World's Worst Film Loses Injunction Against Unflattering Documentary

from the 60-percent-dumb,-40-percent-stupid dept

Actor/director Tommy Wiseau has, for some reason, been trying since June of this year to block the release of an unflattering documentary about his infamous 14-year-old film, The Room. Why Wiseau would be concerned about a documentary detailing the making of one of the worst films ever is beyond me, considering Wiseau's post-The Room career has generally been held together by the film's cult status as the worst film of all time, which has led to additional revenue and a number of personal appearances at screenings.

Wiseau seems to want to have it all: the box office receipts from the film's cult status and a desire to be "respected" as an actor and director. These two desires are in constant competition, which is why Wiseau is now suing the director of a documentary Wiseau himself participated in making. (And why he's gone after other critics in the past using similar tactics.)

The documentary, Room Full of Spoons, details the making of The Room. Up until June, Wiseau seemed relatively at peace with filmmaker Rick Harper's effort. At some point, Wiseau pulled out over "creative differences." This means Wiseau felt the documentary wasn't going to be respectful enough to its subject matter, Tommy Wiseau. Alex Ritman of The Hollywood Reporter has more details on Wiseau's exit from the documentary.

Harper claims he was issued with a growing list of impossible and crazy demands ("make the film 60 percent more positive") from his former collaborator, who then went after any festival or theater who agreed to have it in their schedule, forcing them to remove it. He even went so far as to post a trio of amateurish, angry and explosion-filled videos on YouTube entitled 'Shame on You' aimed at discrediting the doc, the third ending with a Room Full of Spoons poster being blown up (the first, naturally, ended with a minute long advert for Tommy Wiseau underwear*).

*Unisex underwear that, according to Wiseau, "improves your sexuality by 40 percent."

Wiseau went to court and obtained an injunction blocking Harper from distributing, exhibiting , or even talking about his documentary, Room Full of Spoons. Fortunately for Harper, that injunction has been lifted. Here's why Wiseau wanted the film blocked, according to the court's recounting [PDF] of the original complaint.

The affidavit makes three broad complaints about the defendants and Room Full of Spoons:

(i) The documentary mocks, derides and disparages The Room.

(ii) The documentary "casts aspersions on" Mr. Wiseau's character and invades his privacy.

(iii) The defendants are in material breach of copyright law.

In other words, Wiseau wants to abuse at least a couple of aspects of Canadian law to shut down a film he no longer likes. The judge isn't going to let him and starts by addressing the first -- and most ridiculous -- part of his complaint.

Although Mr. Wiseau complained in his affidavit that the documentary mocks, derides and disparages him and The Room, he did not disclose that The Room's fame rests on its apparently abysmal quality as a movie. People flock to see The Room because it is so bad. People see the movie for the very purpose of mocking it; a phenomenon that has won the movie its cult status.

Citations are provided.

Published reviews of The Room are consistent with this view. By way of example:

(a) The BBC wrote that "it's not just bad–it's intoxicatingly awful… [it] is a car crash of incompetence and catastrophic misjudgment."

(b) Entertainment weekly reported that the film is the "Citizen Kane of bad movies."

(c) The Huffington Post stated: "… Anyone at the premier could see that the film was an unmitigated disaster. Wiseau as he often told his collaborators, had attempted to create a dramatic movie in the vein of Tennessee Williams' "A Streetcar Named Desire." Instead, he had created a 99 minute train wreck."

(d) Variety.com, an entertainment industry internet publication described The Room as "a movie that prompts most of its viewers to ask for their money back–before even 30 minutes have passed."

Wiseau claims about "aspersions" and "invasions of privacy" are also dismissed. Wiseau claims the documentary states he financed his film with drug dealing. The court points out the film never makes that assertion. Rather, cast and crew from The Room speculate as to the origin of the film's financing, Rumors of drug dealing are discussed but no one states affirmatively that The Room was financed with drug money. The judge also points out the documentary seems to resolve the issue by providing details on the retail stores Wiseau operated before embarking on his filmmaking career.

The invasion of privacy claim hinges on the film's questioning of Wiseau's relationship with Greg Sestero, Wiseau's friend who helped him make the movie.

Mr. Wiseau complains that Room Full of Spoons has invaded his privacy by alleging as fact that he had a sexual relationship with Mr. Sestero. Here too, the documentary makes no such allegation. The documentary does contain a portion where various actors and crew members of The Room describe the friendship between Mr. Wiseau and Mr. Sestero. One actress then comments that "a couple of others seemed to think they were a gay couple." She then adds immediately that Mr. Sestero seemed to want to follow Mr. Wiseau along like a younger brother.

In addition to misstating what the documentary says about his friendship with Mr. Sestero, Mr. Wiseau did not disclose that Mr. Sestero's mother asked Mr. Wiseau not to have sex with her son, that Mr. Sestero described that exchange in his book and that this information has been in the public domain since 2011.

Finally, the judge gets to the alleged copyright violations and dispenses of those quickly and mercilessly.

In his affidavit, Mr. Wiseau suggested that, if the documentary were released, he would lose control and exclusivity over copyright in The Room.

Mr. Wiseau made this allegation based on the fact that the documentary contains seven minutes of excerpts from The Room. If the allegation has any legal merit, it would have been relevant to disclose that The Room has been available in its entirety on YouTube for approximately four years and that Mr. Wiseau had not taken any steps to have it removed from YouTube before he obtained the ex parte injunction.

In addition, Mr. Wiseau did not draw the court's attention to the fact that he would not lose exclusivity of copyright if the defendants use of excerpts from The Room amounted to "fair dealing" under the Copyright Act RSC 1985, c. C-42. Mr. Wiseau was well aware that the defendants were relying on the concept of fair dealing. They had raised it with Mr. Wiseau's lawyers as early as April 2016.

Further discussion on the lack of merit to this claim follows several pages later, but they are key to the documentary maker's fair dealing defense.

It is clear from watching Room Full of Spoons that the purpose of showing brief excerpts from The Room is not to reproduce the movie but to provide a base for commentary that the documentary provides on the clip in question. Room Full of Spoons follows a fairly consistent pattern in this regard. It introduces the excerpt through an interview with an actor, crewmember or fan of the movie who provides some sort of commentary. The clip is then shown to validate or amplify on the commentary. In some cases the order is reversed. In other cases, the clip is framed by both an introductory and conclusory comment. What is clear is that the clip is reproduced to provide analysis, not to reproduce the movie.

A country's legal system shouldn't be used every time you're slightly aggrieved. Wiseau apparently thought he was getting a 60% more respectful tribute from the documentarian and sued when he discovered it wouldn't be making him appear at least 40% more flawless. The court points out the documentary is still ultimately respectful of its subject matter, even if Wiseau is still somewhat bothered fourteen years later that his film became famous for all the wrong reasons.

Filed Under: censorship, documentary, injunction, rick harper, the room, tommy wiseau

Wikileaks Attempts To Bully Wikileaks Documentary With C&D Notices

from the about-face dept

The history of Wikileaks and its founder Julian Assange is a tortured one, to be sure. Once the darling of the left for exposing important misdeeds by the American government, the site then became a tool for the right in the last Presidential election with the publishing of emails stolen in a hack of the DNC. From there, some have accused Wikileaks of being an arm of Moscow's intelligence efforts, while the America government has made noise about prosecuting the site and Assange under the Espionage Act. Still others support the site for its efforts in exposing the secrets governments wish to keep hidden from the citizens to whom they are beholden.

Through it all, Assange and Wikileaks have remained firm in their mission to expose information and secrets that were previously kept from the public. Except, it seems, when that information has to do with Wikileaks itself. According to the makers of a documentary about Wikileaks entitled Risk, on the topic of Wikileaks, Wikileaks is chiefly interested not in open journalism and unvarnished truth, but rather on its own image. And apparently the site is willing to wield legal threats and lawyers in a way that is almost absurdly hypocritical.

We are the producers of Risk , a documentary film about Julian Assange and WikiLeaks. We unequivocally defend WikiLeaks’ journalistic right to publish true and newsworthy information...We were disturbed, however, to learn that Julian Assange and WikiLeaks sent cease and desist letters to our distributors demanding they stop the release of Risk: “We therefore demand that you immediately cease the use and distribution of all images of the Named Participants and that you desist from this or any other infringement of the rights of the Named Participants in the future.”

From there, the filmmakers go into what lengths they went to work directly with Wikileaks and Assange on the film starting back in 2011. Assange himself provided content to be used in the film and even signed a licensing agreement to use Wikileaks footage for it. Some people involved with Wikileaks requested not to be in the film and the filmmakers complied. People from the site and their lawyers have been shown screenings of the film before every regional release, including as recently as April of this year. There is no claim made thus far that any of the content of the film is false.

So, what is the weighty harm over which Wikileaks is firing off C&Ds? Its image and the image of Assange.

Since 2016, Assange and his lawyers have repeatedly demanded that we remove scenes from the film in which Assange speaks about the two women who made sexual assault allegations against him in 2010 and Sweden’s investigation which has since been discontinued. WikiLeaks’ comments have consistently been about image management, including: demands to remove scenes from the film where Assange discusses sexual assault allegations against him; requests to remove images of alcohol bottles in the embassy because Ecuador is a Catholic country and it looks bad; requests to include mentions of WikiLeaks in the 2016 U.S. presidential debates; and, requests to add more scenes with attorney Amal Clooney because she makes WikiLeaks look good.

The opinion that Assange is an egomaniac has been floating around for some time. With actions like these, there seems to be some evidence of that. But that charge aside, what should be abundantly clear is that the ideals of the site appear to have fallen by the wayside when it comes to a simple documentary that has refused to cinematically stroke Wikileaks to the degree it wishes. That's not a good look for a site that survives on people's belief that it is committed to open and honest information.

In fact, this looks to be the sort of thing that the Wikileaks from years gone by would have dug into and exposed.

Filed Under: cease and desist, documentary, julian assange, risk, truth, wikileaks
Companies: wikileaks

The Paradox Of Trump Threatening Documentary Filmmaker While Supporting Citizens United

from the fine-for-me,-not-for-anyone-else dept

I'm not sure if Donald Trump has ever officially weighed in on the famous Citizens United v. Federal Election Commission, but if he did, I'm guessing he would support that ruling wholeheartedly. After all, he recently hired the former President of Citizens United to be his deputy campaign manager. And, I know that people freak out about the term "Citizens United" and some believe it's the root cause of all evil in American politics today, but that's wrong. At its heart, that case was a First Amendment free speech case, about whether a group (Citizens United) could show a documentary film heavily critical of Hillary Clinton close to the 2008 election. We can all argue about the evils of campaign finance and dark money and super PACs, but there should be ways to fix that without banning movies.

Either way, it's quite ironic that with the former head of Citizens United helping to lead his campaign, Trump is now basically arguing against the very Citizens United ruling by threatening to sue lots of folks associated with a new documentary, called You've Been Trumped Too. Unfortunately, the filmmaker hasn't released the actual threat letters, so we can't see the details, but he claims that "Trump is threatening to sue movie theatres, reporters or anyone who repeats the allegations made in my new film." People Magazine claims it's seen the threat letters but chosen not to post them.

The documentary is actually the third in a series of documentaries that Anthony Baxter has made about Trump, mostly focusing on a family in Scotland that the Trump family has bullied and generally treated exceptionally badly while building a giant golf course where they lived. In response to the claimed threat, Baxter decided to stream the film live on Facebook last week. Most of the reviews I've read of the film basically say that there's not enough material to make a true feature film documentary, and that it's basically a one-note follow-up on the earlier films, trying to capitalize on the election.

But, either way, Baxter should be able to make and release his film without legal threats. And if Trump truly supported Citizens United, he'd agree. But, of course, like so many today, it appears that Trump is willing to support free speech when it serves his interests, but not when it serves others'. And, of course, the same goes for Hillary Clinton -- who has talked about overturning Citizens United. That's a bit unseemly, of course. Pledging to overturn a ruling that said a movie criticizing you could be released?

Nobody comes out of any of this looking good. Which, you know, is basically the theme of this election. Thankfully it's finally over tomorrow.

Filed Under: anthony baxter, campaign finance, citizens united, documentary, donald trump, free speech, so you've been trumped
Companies: citizens united

Colorado Judge Ignores First Amendment, Allows Prior Restraint In Banning Aretha Franklin Film

from the not-how-it-works dept

Late last week, singer Aretha Franklin succeeded in convincing a judge in Colorado to stop the Telluride Film Festival from screening the documentary Amazing Grace -- a concert film shot by Sydney Pollack that was actually filmed back in 1972, but was never shown. Franklin, of course, has no copyright in the film, but argued in her injunction request that she had an agreement with Pollack not to use the film without her authorization. From the complaint:

Ms. Franklin has never given permission for the use of this footage in any commercial context and has not authorized the public release of the footage. The footage was taken with the express understanding that it would not be used commercially without agreement and consent by Ms. Franklin.

Franklin argued that part of the agreement between Warner Bros., which held the rights to the film, and Alan Elliott, who apparently purchased those rights from WB, was that Elliott would then obtain all the necessary "authorizations, consents and releases and pay all re-use fees and other compensation required by applicable collective bargaining or individual contracts or otherwise required by law." While parts of the complaint hint at possible copyright claims, there really is none here, which is why the actual counts in the complaint do not mention copyright. Instead, they lean heavily on the (already troublesome) concept of publicity rights, as well as an anti-bootlegging law, which makes little sense, since the video is far from a bootleg.

As noted above, amazingly, the judge, John Kane, very quickly obliged and issued a short injunction barring the showing of the film. There is basically no discussion of the issues at all. Rather, Judge Kane merely repeats verbatim the arguments made by Franklin and then orders the injunction, blocking the showing of the movie.

This is ridiculous. As Eriq Gardner at the Hollywood Reporter lays out in great detail, it is difficult to see how this is possible under the First Amendment. When we're talking about speech -- even defamatory speech -- courts cannot issue injunctions, because that's prior restraint. There may be other remedies, but it seems dangerous to argue that a publicity rights claim can lead to an entire film being blocked:

In Colorado, a plaintiff can't prevail on a publicity rights claim if a defendant's use of the plaintiff's name and likeness is privileged under the First Amendment. That much is clear by prior cases. The state's Supreme Court has held the analysis turns on two issues — whether the use is primarily commercial or noncommercial and whether such use reasonably relates to a publication concerning a matter that is newsworthy or of legitimate public concern. Feature films are almost always deemed noncommercial (as opposed to, say, an advertisement) while the public concern of Amazing Grace is a toss-up.

Even if Franklin wins this analysis and shows she has a likelihood of prevailing in her lawsuit, under the proper standard of law, she then needs to demonstrate "irreparable harm" to obtain an injunction. In past court cases, judges have refused to enjoin works even when defamation can be shown or even when someone's privacy rights are being violated. Publicity rights should theoretically evoke an even higher bar because what's being protected is commercial use of their identity.

Even worse, the judge relies on that agreement between Warner Bros. and Elliott concerning Elliott's requirement to get permission. But the actual lawsuit here is against neither WB nor Elliott... but against the Telluride Film Festival, which is not a party to that agreement and thus should not be bound by it. So, even if one were to argue that Elliott had somehow waived his First Amendment rights in signing that contract, that says nothing at all about Telluride's.

The expansive reading of the situation by the judge is really dangerous. As Gardner points out, such a reading of publicity rights laws could allow celebrities to block reporters from writing about them by claiming it is violation of their rights. Furthermore, considering the First Amendment questions at play here, it is even more troubling that Judge Kane doesn't even mention the First Amendment at all, nor does he explore the issue of prior restraint. Even more bizarre? Despite the lack of any copyright claim, the judge seems to focus on the lack of "fair use" for why he's shutting the film down:

A film that essentially recreates the entire concert experience is not fair use of this footage.

Again, the complaint doesn't even make a copyright claim, so it makes no sense to do a fair use analysis in the first place, and even if there was such a claim, a fair use analysis requires a lot more than just saying "hey, it's not fair use." You have to at least do a four factors analysis. But, again, that's neither here nor there since there was no copyright claim in the first place.

And, unfortunately, since the Telluride Film Festival is now over, it's not clear if the festival will appeal this ruling, which will keep it busy in court for no clear benefit. But, in the meantime, the ruling has scared off multiple other festivals that had planned to show the film. As Gardner points out, all of this prior restraint was because Judge Kane couldn't even be bothered to realize who the defendant was, nor did he appear to recognize a blatant case of prior restraint when it landed on his desk:

Judge Kane has done a disservice by issuing a hasty ruling on a last-minute injunction bid — telling THR that this one was an easy call because producer Alan Elliott needed Franklin's permission. Except that's not what he was being asked to adjudicate! Elliot wasn't the defendant after all. Instead, film festivals (and distributors and news organizations) now have to worry about prior restraints on use of a celebrity's likeness and name. And sorry, Aretha, but this is hardly good news for artists who often use the names and likenesses of other artists in their creative endeavors. If she had made a deal that gave her the copyright on the footage — meaning the ability to control reproduction and distribution — that would be one thing; Here, she's attempting the ride the same vehicle that Lindsay Lohan attempted to use to stop a Pitbull song.

I agree with Gardner that this is a horrible ruling, from a judge who seemed to be in a rush to agree with Franklin, without even realizing what the issues were or who the parties were in court (and if they were subject to the contract). The only "saving grace" is that this ruling is at the district court level, rather than appeals court where it would become the rule for the circuit -- but it's already leading to prior restraint and scaring off film festivals from showing the film. And, you can bet that this case will be cited by others looking to use publicity rights to censor content in violation of the First Amendment.

Filed Under: alan elliott, amazing grace, aretha franklin, censorship, copyright, documentary, first amendment, free speech, injunction, john kane, movies, prior restraint, publicity rights, telluride
Companies: telluride film festival, warner bros.