Copyright Law Is The Killing Fields Of Culture

from the creativity-must-be-paid-for dept

It seems that a day can’t go by without more examples of just how problematic our copyright setup is. J.D. Lasica has written up a great article talking about a guy who was running a nice little company that took movies and made two minute trailers advertising the films, which he would then offer to online retailers to help promote the movies. The lawyers at Disney, however, could only see the fact that someone who wasn’t them appeared to be making money on their content. Even though his work was helping them sell more, they sued him for $110 million and eventually forced him to shut down the company. Since he was first sued, he went out and created a documentary of other artists who “have been threatened, sued, fined, and put out of work in the name of copyright.” These are all cases where people, in an attempt to be creative and expand our culture, were instead shut down by copyright laws that have clearly gone too far.

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Comments on “Copyright Law Is The Killing Fields Of Culture”

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Anonymous Coward says:

No Subject Given

While I generally agree that patent/copyright is very broken and personally lean toward very libertarian solutions, this particular story is not a very good example. Even with a much more balanced set of IP laws, one would presume that Disney would have some right to control the use of their property. Including being very, very, very stupid (stopping someone who’s promoting their stuff).

People/companies are stupid about what is and is not too their advantage all the time. How is this different because it involves IP instead of physical property?

Sorry, Mike, but this reads like a “knee jerk” on your part. The real issue is their short-sighted reaction, not malfunctioning law.

Mikester says:

Re: Re: No Subject Given

I could be wrong, but couldn’t it be a matter related to when companies sue other companies with similar names? IE. If Starbucks coffee doesn’t sue HaidaBucks coffee, they risk losing their trademark.
So if Disney doesn’t sue someone redistributing their product without their permission, couldn’t they risk losing it too?

parker (user link) says:

Re: Re: No Subject Given

I think the law is pretty clear on this one. Not necessarily right, but clear. Section 106 of the copyright statute lists the preparation of derivative works as one of the copyright holder’s exclusive rights. For those who don?t know, section 107 provides the very vague criteria used to evaluate fair use.

I would suspect Disney argued that the “purpose and character” of the work was commercial (leans against fair use), the nature of the copyrighted works for sale are by definition high-value and high-availability (again, leans against), and that the effect on their market is potentially negative because Disney can’t carefully control what goes into the trailer (if you buy it the argument, leans against fair use).

I would also suspect that Disney is just being careful. They don’t want to set a precedent whereby others can lawfully make trailers using their footage. Imagine if I made a trailer that made their movies look smutty, or just didn’t (gasp!) pre-test them to assure Disney’s audience (do you feel the sense of ownership?) would approve. In this case they may benefit, but ultimately the less control they have over their IP the less value they can extract (or so the reasoning goes).

This case seems more a case of brand protection than IP protection. In that respect I see validity in the claim and understand the outcome. If Disney wants to protect their brand, so be it. However, like the Grey Album this shows how the “derivatives works” clause is overly broad in a world where technology means reuse of ideas (something we want) often implies the creation of a derivative work.

Brian Clark (user link) says:

Re: Re: No Subject Given

I still don’t understand what’s wrong with taking 2 minutes of material out of the movie. How is that not fair use? How is it worth a $110 million lawsuit?

It might not be worth a $110M lawsuit, but it’s not fair use. There’s a whole set of tests to determine fair use, but the general rules are:

1) Is the use commerical or educational?

2) Is the use in the context of criticism, news reporting, commenting, research, etc.?

3) Is the use “transformative”?

4) Is the original work worthy of copyright protection?

5) How much of the work is used?

6) What is the impact of the use on the marketability of the original?

In the case of this story, the answers are “commerical, no, no, yes, no very much, and potential positive”. Which is not a particularly strong “fair use” position.

Greg Hittelman (user link) says:

Killing Fields of Culture

Hi Mike –

It’s exciting to feel all reverberations from our little act of media rebellion. The movie referred to in JD Lasica’s article is “Willful Infringement” — and since we came out of the editing room, the movie’s been playing all over the country at universities, law schools, libraries, film fests, cultural events, arthouse movie theaters, etc.

Thanks for helping us sound the alarm about
the damage that corporate copyright abuse is doing to free speech, cultural democracy, and artistic freedom.

Best regards,
Greg Hittelman
director, Willful Infringement

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