Supreme Court Admits Copyright Infringement May Actually Help The Copyright Holder

from the some-good,-some-weird dept

We've written a few times about the mess in the law concerning how to figure out the statute of limitations on copyright. The law says its 3 years, but it's been interpreted very differently as to which three years it means. Is it three years after the first act of infringement? Or if something is "ongoing" (such as posting something online) can you then sue for the most recent three years? In a case that went to the Supreme Court concerning the movie Raging Bull, MGM argued that because the plaintiff, Paula Petrella, waited nearly two decades to bring a lawsuit over the script, the lawsuit should be barred based on the doctrine of laches (which has come up in other cases as well). Laches, of course, says that you can't wait that long to bring a lawsuit, because you're just piling up liability for the defendant. In short, the concept is that it's inherently unfair to know about a situation, but not to bring suit, because you're knowingly just letting the amount you'll sue for stack up before finally suing.

In this case, the two lower courts sided with MGM and said that based on the laches doctrine, Petrella could no longer bring her lawsuit. The Supreme Court reversed that ruling, noting that the statute of limitations issue (allowing a "look back" of just three years) more or less overrides, but also that since laches is common law doctrine, and not a part of copyright law, it doesn't count. As Matt Schruers notes, this is an odd ruling, in that the Supreme Court seems to have no problem bringing in other common law doctrines when it suits the court (or, really, when it suits Justice Ginsburg, who quite frequently is found leading the charge on these decisions):

It is somewhat curious that the Supreme Court comfortably imports some common law principles into copyright, such as doctrines associated with secondary liability, but not others, such as the equitable application of laches here.

But there's another, perhaps more important point, that is unrelated to the direct issue in the case, but which Schruers again highlights as quite important: and that's that Ginsburg -- a notorious strong copyright supporter -- appears to admit in a Supreme Court ruling that there may be benefits to the copyright holder from people infringing. This is a somewhat startling admission in a Supreme Court ruling:

It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement. And there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copyrighted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner. See Wu, Tolerated Use, 31 Colum. J. L. & Arts 617, 619–620 (2008)

While it is admittedly troubling that she seems to suggest that fan sites are infringing, it's still progress that the Supreme Court has now stated, clearly, in a majority decision that infringement can, at times, benefit the copyright holder. This matters because so many people in policy and legal circles like to insist that this is impossible. In fact, Schruers himself notes that when he recently suggested something not even as broad as that, they got slammed with offensive comments:

A more interesting wrinkle is Justice Ginsburg’s explicit embrace of a point that I had previously characterized as “taboo” — that not all infringements impose costs on the rights holder.  In fact, when I wrote last year that some infringements have no economic cost, and that other infringements will reallocate wealth instead of destroy it, the site admins had to install a profanity filter for the comment section.  Yet today, Justice Ginsburg goes a step further and states that some infringement “may benefit the copyright owner.”  (To my knowledge, Supreme Court opinions don’t have a comment section.)

We actually had written a post discussing Matt's original post ourselves, and ran into similar issues with folks insisting that what we were discussing was nothing more than "theft" and "re-distribution to grifters." Yet, here we now have the strongest copyright maximalist on the Supreme Court flat out admitting that sometimes copyright infringement benefits the copyright holder.

While there may be other issues with the ruling, this is at least nice to see.

Filed Under: copyright, laches, paula petrella, raging bull, ruth bader ginsburg, scotus, statute of limitations, supreme court
Companies: mgm

Hollywood Talent Turns To Kickstarter To Escape 'Institutional Censorship'

from the exodus dept

In discussions about artists like Amanda Palmer using Kickstarter, plenty of people continue to insist that their success was made possible by their traditional industry backgrounds. We've already gone over lots of reasons why this is silly, most notably the fact that such artists do a lot of work and certainly don't coast on anything. But it also usually ignores the artists themselves, who more often than not clearly say that they are going it alone because traditional structures were holding them back. The fact that creators who have received some amount of benefit from labels/studios/publishers decide to move on anyway, and then see their careers grow, doesn't say less about platforms like Kickstarter, it says even more.

This sentiment is not limited to music, or to independent creators. Kickstarter is getting a lot of attention, and that's bound to attract bigger and bigger names. The latest, sent in by jtomic, is a feature film called The Canyons which involves some pretty serious Hollywood talent. The script is written by Bret Easton Ellis (author of American Psycho) and directed by Paul Schrader (as in, the guy who wrote Taxi Driver and the screenplay for Raging Bull). Ellis, Schrader and the producer are putting up a bunch of the money themselves and turning to Kickstarter for the rest—all because they want to escape the confines of Hollywood:

The film is a collaborative effort stewarded by former Lionsgate producer Braxton Pope as a response to the changing landscape of the film industry. Pope, Ellis and Schrader are partly financing the film themselves through Pope’s new company Sodium Fox in order to maintain complete creative control of the distinct source material. According to Schrader, “We all experienced the frustrations of financing and institutional censorship. But now, with advances in digital photography and distribution, we can tell a story in the manner we choose. Movies are changing and we’re changing with it.”

They expand on this in the video, which includes some excellent comments from all three creators. Pope talks about how the Hollywood process encourages "groupthink" and makes it hard for a film to stay true to the artists' vision. Schrader and Ellis both compare the current revolution in film to that of a hundred years ago when the medium was in its infancy, and are clearly excited about the prospect of making a film without notes from meddlesome studio execs.

There are some pretty cool funding tiers too, many of which are unsurprisingly sold out. The cast itself is being largely crowdsourced through an online audition platform, netting undiscovered talent from around the world, and anyone who pledges at least $10 gets to vote on finalists. For $500, Ellis and Pope offered to watch your short film and share their honest reactions (with links) to their followers on Twitter & Facebook (all 10 slots for that one are already sold out). For $1,500 they'll do the same with a feature-length film. For $5,000, Ellis reviews your novel (again, sold out) or Schrader gives you notes on your script (a few left at time of writing). One lucky backer has already snagged the single $10,000 "De Niro's Money Package", which comes with a money clip autographed by Robert De Niro and given to Schrader on the set of Taxi Driver.

So there can be absolutely no doubt that these guys are using their momentum from the traditional Hollywood system to make this project possible—but I'm at a loss as to how that says anything good about Hollywood. I doubt any of these creators had any real need to finance a film themselves, but they saw a growing opportunity to go directly to their fans and make movies the way they really want to make them, and they jumped on it. That's not coasting on the past—it's embracing the future.

Filed Under: american psycho, braxton pope, bret easton ellis, hollywood, paul schrader, raging bull, taxi driver, the canyons
Companies: lionsgate