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February 2002, Week 4

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Subject:
From:
Jeffrey Clark <[log in to unmask]>
Reply To:
Film and TV Studies Discussion List <[log in to unmask]>
Date:
Mon, 25 Feb 2002 17:43:58 -0500
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Colleagues,

I'm not a publishing scholar but have been following this exchange with great interest--since I am an academic media professional who's also up on intellectual property law and issues because I have to be.....

So using Andrew's comments below as a springboard, let me offer a strong viewpoint of my own.

My impression the last time I checked--a few years ago now--publishing policies in cinema study-related journals, was that they tend to be conservative on the issue of using stills or frame grabs from films: i.e., the author should arrange and warrant such material as having been cleared.
Publishers tend not to want to deal with it.

Or to push the envelope on what can legally be done.

Personally I'm of much the same mind as Andrew. More can and should be done
in asserting, and using, fair use than scholar have been doing. Andrew points out the 2 Live Crew decision for some support. There's also been a recent one on the use of a Robt. Mitchum film clip for an obituary, which I've reproduced a summary of just below my signature.

Here are two salient points involved in this issue as I see them:

1. The fair use provisions, which Andrew cites below from Title 17, section
107 of the U.S. copyright law, are reasonably met by film scholarship. Character of use tends toward nonprofit educational. While nature of the work involved is creative rather than informative (the latter being the safer end of the spectrum of works for fair use consideration), the amount or portion being used--if a frame grab, or small selection of them--is trivial.  Arguments that a frame of a film can somehow represent the film as a whole, or at least a major element or feature of it--another part of this fair use factor being that the portion shouldn't involve the "essence"
of the work (whatever that's supposed mean to someone with more than half an esthetic brain to apply to the question!)--seem intellectually unsupportable. A true production or other publicity film still is a different matter--a work in itself that I would say requires clearance. But
isolated frame grabs are a minor element of the film, and in a form which does not even represent the film in the form it becomes an expressive work entitled to copyright protection--namely, a sequence of stills creating an illusion of movement and a narrative within it. The issue brought up elsewhere, involving early film images printed on paper, each of which had to be copyrighted, is interesting but not applicable anymore: that addressed a practical issue of protection bound to another historical time and technology, in my view. Finally, a scholar's work with frame images hardly impacts the market for the copyrighted work itself. No one is going to read your article--let alone buy the journal it's published in--in preference to watching the film that's its subject, just because you used a
few illustrative frames from PSYCHO's shower scene. You may just as easily produce positive interest in watching the film.

2. The argument that such scholarly use is an infringement is in the end a dodge: The real issue is control, especially of publicity. Communication about the work not produced by the marketing mechanism--whether in scholarship, daily or weekly reviews, informal chat here or elsewhere--might indirectly affect the market for the copyrighted work. Sure. But such things are covered by the purposes of fair use: scholarship,
research, criticism, teaching and the like. Comes with the territory. Copyright law does not address--and should not condone--the need for this sort of corporate control over the product. Last year there was an instructive case implicating this issue in the world of literature: Alice Randall's parodic "counter-version" of GONE WITH THE WIND, or WIND DONE GONE. Ignore the fact that its publication wouldn't have been an issue if the copyright law hadn't been extended in 1998 (which is headed for Supreme
Court reconsideration late this year), because Mitchell's book would have been in the public domain except for that. The challenge that did occur--and was successfully overcome--was an issue of the same sort of control because Randall's book might indirectly affect the market, and image and reputation, of Mitchell's. Readers who are or are destined to be fans of Mitchell aren't important; they're a given. Readers who might, for different reasons, relish both books just cancel themselves out--because again they don't affect Mitchell's work's potential market. But those who might come across Randall's take on the story and be intrigued by it, might
never develop the taste and produce revenue for the original story. It's the old issue of hearts and minds... and the battle for a kind of total economic and opinion control that no one should have. The film studios--including Disney--should know this perfectly well, whether or not they're willing to admit it.

That's enough from me for now on this issue. But I hope to be told the tides are changing more than I know in editorial practices. If they aren't,
we should be helping push the envelope where we have influence.

Below is the summary decision on the Mitchum film clip case, from BNA Media
Law Reporter.

Jeff
**********
Jeff Clark
Director
Media Resources (MSC 1701)
James Madison University
[log in to unmask]

=========================================

Volume 29 Number 42
October 30, 2001
Copyrights
Inclusion of 'G.I. Joe' Clips
In Actor's Obituary Was Fair Use



The use of a brief film clip as part of an obituary, in order to show the deceased's accomplishments, qualifies as a fair use, the U.S. District Court for the Southern District of New York found Sept. 28, granting summary judgment in favor of defendant news broadcasters (Video-Cinema Films Inc. v. Cable News Network Inc., S.D.N.Y., 98 Civ. 7128-7130 (BSJ), 9/28/01).

Video-Cinema Films Inc., whose president and sole shareholder is Larry Stern, licenses copyrighted motion pictures and excerpts. Stern sought to purchase the 1945 film The Story of G.I. Joe from the University of Southern California. Robert Mitchum received an Academy Award nomination for his supporting role in the World War II movie, and after Mitchum passed
away in July 1997, Stern kept track of news broadcasters' use of clips from
G.I. Joe in their Mitchum obituaries.

Thereafter, the court said, Stern succeeded in obtaining rights to the film
from USC, retroactive to March 1997. He then sent letters to several news organizations, including the defendants Cable News Network Inc., American Broadcasting Co. Inc., and CBS Corp., requesting payment for their use of G.I. Joe film clips during their broadcasts. The clips at issue ranged from
6 seconds to 22 seconds in length, and the original audio portions were replaced by a voice-over during all or part of each clip. Each defendant responded to Stern's letter by stating that its use was fair. Stern brought
an action against the media entities for copyright infringement and unfair competition, and the defendants moved for summary judgment on fair use grounds.

Fair Use Doctrine.
Reasonable use of copyrighted material, without the permission of the copyright owner, is not considered infringement, if it is for a purpose enumerated in 17 U.S.C. 107, the court explained, namely "criticism, comment, news reporting, teaching ... scholarship, or research ... ." Section 107 provides four factors to be considered in determining whether a
use is fair:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted
work.

The clips were used for a purpose enumerated in Section 107, namely news reporting. "It is well settled that where the Defendants' use is for one of
the purposes set forth in the statute, there is a strong presumption [that the first factor] favors the alleged infringer," the court said. Moreover, the obituaries qualify as "transformative" works made to inform the public about Mitchum's death and career. The film from which the clips are taken was made to entertain and to educate the audience about the infantry in World War II. The clips were used in the news reports only "because of their relevance to Mitchum." Defendants' for-profit status does not weigh against a fair use finding, the court said, noting that the focus should be
on whether the new work will be used "for a purpose favored by the statute."

The second factor was found to be neutral or to weigh slightly in the plaintiff's favor. The copyrighted work is fictional, the court noted, which weighs against fair use, but was previously published, so that the defendants "did not usurp the first publication rights" in the work.

Amount and Substantiality.
As to the third factor, the court noted that the clips were very short, especially when compared to the film as a whole. Moreover, the clips did not constitute the "essence" of the film. Even with respect to the ABC and CBS clips, where an arguably important scene was depicted, its significance
is not imparted to the viewing audience during the brief portion shown. The
clips were "reasonable in relation to the purpose of the copying," which was to provide a description of Mitchum's film history, the court said.

With respect to the fourth factor, the court found that the defendants' obituaries would not adversely affect the market for G.I. Joe; in fact, the
court pointed out that the broadcasts "could have increased market demand for the film." The plaintiff's assertion that a finding of fair use would deprive it of a license fee it could otherwise have earned does not change the result, the court found. This argument, "if taken to its logical conclusion, would render this factor obsolete because it would favor the copyright owner in every case," the court explained.

The court granted the defendants' motion for summary judgment as to the unfair competition claim as well, finding that the claims are preempted by federal copyright law.

...

Copyright  1999-2001 The Bureau of National Affairs, Inc. All Rights Reserved.


--On Saturday, February 23, 2002 12:00 AM -0600 Automatic digest processor <[log in to unmask]> wrote:

> ------------------------------
>
> Date:    Fri, 22 Feb 2002 21:16:10 -0800
> From:    Andrew James Horton <[log in to unmask]>
> Subject: Reproducing stills and Fair Use
>
> I'm very surprised that in all this discussion of reproducing stills (and
> this could apply to any kind) nobody has mentioned the magic words "Fair
> Use". Admittedly, they are not quite as magic as they used to be, and they
> are being challenged. But nevertheless they are a legal basis for
> reproducing a part of a audiovisual work for the purposes of
> non-commercial / academic study (and also for the purposes of satire --
> bizarrely enough, the hitherto obscure Fair Use clause was successfully
> employed by the band 2 Live Crew to justify their sampling of a Roy
> Orbison track in 1994 on one of their songs).
>
> Fair Use is based on four factors (and I've copied and pasted this from
> http://www.publaw.com/parody.html but I'm sure there are more reputable
> sources):
>
> (1) purpose and character of the use, including whether the use is
> commercially motivated or instead is for nonprofit educational purposes;
>
> (2) nature of the copyrighted work;
>
> (3) amount and substantiality of the portion used in the newly created
> work in relation to the copyrighted work; and
>
> (4) effect of the use upon the potential market for or value of the
> copyrighted work.
>
> So, providing that the "quotation" (and I agree with Mike Chopra-Grant's
> analogy with print quotation) is intended to promote knowledge, is not
> giving away some sort of trade secret, is not a substantial proportion of
> the work and does not diminish the value of the work that is "quoted",
> scholars should be safe.
>
> Personally, I think film producers who want to stop people reproducing
> stills are as anally retentive as those people who want to be asked
> permission before you link to their website (can someone please explain
> this one to me???). But that's not to say that these people don't exist.
>
> In addition, I should stress that I'm not saying this as a lawyer. I'm
> saying this as someone who regular nicks film stills from wherever I can
> find them and reprints them on the basis that I'm doing the film more good
> than harm by doing so. Nobody's taken me to court yet! (fingers crossed)
>
> As far as I'm concerned, the justified dissemination of academic knowledge
> about film and the (current) copyright rules are incompatible. But that's
> another story...
>
> Best regards
>
> Andrew James Horton
> Editor-in-Chief, Kinoeye, http://www.kinoeye.org
>
> Subscribe to Kinoeye's FREE E-MAIL UPDATE SERVICE by sending a blank
> e-mail to [log in to unmask] (you will need to reply to a
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>
> ------------------------------

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