Copyright

by Mike Masnick


Filed Under:
copyright, dmca, transformers, videos, youtube

Companies:
paramount



Paramount Sends More Bogus DMCA Takedowns On Fans Filming Transformers 3 Shoot

from the who's-copyright? dept

Earlier this year, there was a reasonable bit of fuss over Paramount issuing a bogus DMCA takedown on someone who had videotaped a brief snippet of the filming of the next Transformers movie, which was going on in an alleyway right outside the guy's office. It was difficult to see what sort of "copyright" violation there was here. The guy, Ben Brown, had filmed it himself, and it wasn't like it was a private set or anything. Paramount never made any sort of statement, but the video did go back up a few days later. Apparently, the over aggressive lawyers at Paramount didn't learn their lesson. Apparently, a bunch of videos that people shot themselves of filming of the movie going on in Chicago were all taken down from YouTube under DMCA claims. Again, it's difficult to see how these claims are legit -- and this is especially troubling, seeing as it comes from Paramount, which is owned by Viacom. Viacom, of course is involved in a bit of a legal battle with YouTube -- but, more importantly, in a previous legal battle over bogus Viacom DMCA takedowns, Viacom had agreed to manually review all takedown notices to avoid bogus takedowns like this one.

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  • identicon
    DH's Love Child, 28 Jul 2010 @ 12:12pm

    Viacom 'promised'

    but, more importantly, in a previous legal battle over bogus Viacom DMCA takedowns, Viacom had agreed to manually review all takedown notices to avoid bogus takedowns like this one.

    Oh that's a good one! My ribs are hurting over that. A big content company telling the truth? Oh stop, you're killing me!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Jul 2010 @ 12:56pm

      Re: Viacom 'promised'

      I read that as they reviewed the takedowns, decided they might be bogus and then decided to see if they would stick anyway.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Jul 2010 @ 2:29pm

        Cry Wolf Viacom Re: Re: Viacom 'promised'

        Time for a 3 strikes law on bogus take down notices. If you issue too many bogus take down notices you are out.

        reply to this | link to this | view in chronology ]

  • icon
    Dark Helmet (profile), 28 Jul 2010 @ 12:13pm

    Who cares about the legality of the takedowns...

    ...When this is all just plainly effing stupid?

    I can tell you this, as I live in the city and work about six blocks from where they've been filming, people are coming downtown SPECIFICALLY to catch glimpses of this stuff. They're specifically trying to film snippets of the live action. They want specifically to share these with other fans.

    ....in other words, THESE PEOPLE ARE EFFING INTERESTED! Jesus, how tough is it to know that you don't look at your greatest potential customers, who happen to be sitting in a spotlight, and take a fat dump on their heads? Promote, you morons! Create buzz. Excitement. Interest. These aren't film prints, for Christ's sake. They're short snippets of the action, which are separately cool from the the actual movie specifically BECAUSE they're in the backdrop of a non-CGI enhanced first class city/skyline like Chicago.

    Is Viacom, like, COMPLETELY devoid of any common sense? What is the possible net benefit of taking down these videos? What is their fear?

    I don't get it....

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 28 Jul 2010 @ 12:34pm

      Re: Who cares about the legality of the takedowns...

      Hey, I was within at least six blocks of you a week ago. I knew I felt a disturbance in the force...

      reply to this | link to this | view in chronology ]

      • icon
        Dark Helmet (profile), 28 Jul 2010 @ 12:58pm

        Re: Re: Who cares about the legality of the takedowns...

        ....And now you're creepy.

        reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 28 Jul 2010 @ 1:27pm

          Re: Re: Re: Who cares about the legality of the takedowns...

          Oops, overshot "funny" straight into "creepy". Sorry about that!

          reply to this | link to this | view in chronology ]

          • icon
            Bubba Gump (profile), 28 Jul 2010 @ 1:53pm

            Re: Re: Re: Re: Who cares about the legality of the takedowns...

            I still believe Dark Helmet is the split personality of my coworker who lives and works downtown.

            reply to this | link to this | view in chronology ]

            • icon
              Dark Helmet (profile), 28 Jul 2010 @ 2:33pm

              Re: Re: Re: Re: Re: Who cares about the legality of the takedowns...

              Well, in that case, the split personality of your friend is currently trying to come up with a innexpensive way to create a basic bookcover for a novel I'm going to release on Kickstarter.

              If anyone knows of a website that has templates of this nature (or any artists that would like to promote themselves through this book), let me know :)

              reply to this | link to this | view in chronology ]

          • identicon
            the truck living next door, 30 Jul 2010 @ 9:47am

            Re: Re: Re: Re: Who cares about the legality of the takedowns...

            hmm i said i live six blocks from mcdonalds ... you said you were six blocks from me ... either you work at mcdonalds ... or you are likely wrong ... creepy? not really

            reply to this | link to this | view in chronology ]

    • icon
      designerfx (profile), 28 Jul 2010 @ 1:13pm

      Re: Who cares about the legality of the takedowns...

      people don't like being successful. In their minds, they are successful enough - so stop making them more money!

      reply to this | link to this | view in chronology ]

  • icon
    Chris-Mouse (profile), 28 Jul 2010 @ 12:54pm

    It's too bad nobody can afford to sue them over this. It would be interesting to see them prove ownership of the copyright on a video taken by someone with no connection to either Paramount or the film production company.
    They'd pretty much have to show some grounds for claiming the copyright, otherwise there's that whole 'under penalty of perjury' clause in the DMCA.

    reply to this | link to this | view in chronology ]

    • icon
      interval (profile), 28 Jul 2010 @ 1:50pm

      Re:

      @Chris-Mouse: "It's too bad nobody can afford to sue them over this."

      I've been saying that for years. But the rate at which it happens (or the complete lack of any challenges) makes me wonder how much ignorance plays into it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jul 2010 @ 2:03pm

    I might care about Transformers movies more if they were about...you know...Transformers. The G1 cartoon had dozens of transformers (with personality) and two or three humans. The last movie had some kid's mom high on pot brownies. The first movie had lots of filler crap, too. I'm rather disappointed.

    So when people are actually interested in this crappy new movie and get issued take-down notices, I say eff 'em. Boycott their sorry ass movie.

    And remember...ONLY a Prime can kill a Prime...er...unless you are Megatron...I guess. :::eyeroll and groan:::

    reply to this | link to this | view in chronology ]

  • identicon
    DMM, 28 Jul 2010 @ 2:04pm

    Let me start by saying that I agree with Dark Helmet that Paramount should use the fans' interest as free promotional advertising for the T3 movie and ignore the copyright issues.

    In defense of Paramount, I do see a copyright issue here. (Again, it's worth stressing that I believe they are foolish to assert DMCA claims against their fans.) The staging of a movie set is performance art. Everything is planned in advance, from spoken parts, to the actions of the actors and inanimate objects (such as a car being tossed by an imaginary Transformer), to the background scenery. Since this is performance art, any video recording of the performance art is creating a derivative work of the art. If that video recording is done without permission, then the derivative work is unauthorized. When the fans post these unauthorized derivative works online, they are subject to DMCA takedown notices. But, because the movie set is performance art, and the derivative works unauthorized, the DMCA notices issued by Paramount are not bogus (even though I strongly disagree with Paramount's use of the DMCA notices in this instance).

    reply to this | link to this | view in chronology ]

    • icon
      jjmsan (profile), 28 Jul 2010 @ 3:00pm

      Re:

      Unauthorized and Copyright are not the same thing. The individual taking the photo still has a right to use it for personal uses. "I was taking a video of Wacker Drive and all these damn movie people kept getting in the way."

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 28 Jul 2010 @ 4:45pm

      Re:

      Since this is performance art, any video recording of the performance art is creating a derivative work of the art.

      Either you're wrong or Wikipedia is:

      http://en.wikipedia.org/wiki/Derivative_work#When_does_derivative-work_liability_exist.3F

      Do you know of some other theory under which this could be copyright infringement?

      "Even if a work is found to be an unauthorized derivative work, an alleged infringer can escape liability via the defense of fair use." Non-commercial, small portion of the final product, doesn't affect the market for the original... yeah I think this would be fair use anyway.

      reply to this | link to this | view in chronology ]

    • identicon
      Lawrence D'Oliveiro, 28 Jul 2010 @ 5:20pm

      Re: Performance Copyright??

      DMM claimed:

      The staging of a movie set is performance art.

      But copyright doesn’t exist until the work has been “fixed in a tangible form”. As I understand it, that means there is no copyright in the performance itself, only in recordings of the performance.

      reply to this | link to this | view in chronology ]

      • identicon
        Michael, 29 Jul 2010 @ 3:27am

        Re: Re: Performance Copyright??

        A+

        reply to this | link to this | view in chronology ]

      • icon
        Richard (profile), 29 Jul 2010 @ 3:45am

        Re: Re: Performance Copyright??

        "But copyright doesn’t exist until the work has been “fixed in a tangible form”."

        But the script counts for this purpose - however if this was a sporting event there would definitely be no copyright.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 29 Jul 2010 @ 8:21am

          Re: Re: Re: Performance Copyright??

          But the script counts for this purpose - however if this was a sporting event there would definitely be no copyright.

          But they didn't put a copy of the script (which is probably in dead tree format) out there. They put videos that they took out there. The written script is protected by copyright, but the spoken lines are gray area at best.

          reply to this | link to this | view in chronology ]

    • icon
      TtfnJohn (profile), 28 Jul 2010 @ 7:15pm

      Re:

      Been on a movie set? Even as an extra?

      If that chaos is performance art I'm the uncle of quite a few monkeys.

      A tranformer tossing an inanimate object will be done in a studio complete with green screen and not outdoors, for one thing.

      Outdoors are used for a number of purposes, not the least backgrounds, weather and the fact that the action itself is too big to be contained on an indoor set. (See above about transformer and green screen.)

      Also, it's easier to do explosions outdoors and there's
      less chance of wiping out a studio that way!

      So I'm failing to see where the copyright on the finished movie is infringed by taking a quick video of some outdoor chaos (planned or not and most of it isn't) and tossing it on YouTube.

      As for the idiocy of issuing take down notices; we are in complete agreement. :-)

      reply to this | link to this | view in chronology ]

  • identicon
    abc gum, 28 Jul 2010 @ 2:30pm

    "Since this is performance art, any video recording of the performance art is creating a derivative work of the art. If that video recording is done without permission, then the derivative work is unauthorized."

    - Hey, me too. When ever I walk down a street in public, I consider it to be a performance. I plan the route in advance, I know where I'm going and I say hi to people who are not creepy. This is all planned in advance.

    "When the fans post these unauthorized derivative works online, they are subject to DMCA takedown notices."

    - Warning to all you out there ... including the government, I will issue a DMCA take down notice of my performances if you post them. You have been warned.

    reply to this | link to this | view in chronology ]

    • icon
      Dark Helmet (profile), 28 Jul 2010 @ 2:35pm

      Re:

      "Hey, me too. When ever I walk down a street in public, I consider it to be a performance."

      Man, I'd hate to tell you what I consider a performance....

      reply to this | link to this | view in chronology ]

    • identicon
      Monarch, 28 Jul 2010 @ 4:09pm

      Re:

      A photograph, or video of a performance, art, painting, or sculpture displayed in a public setting, is a derivative work. Only the owner of the photograph can own the copyright for the photo or video. Yes the original owner of the art or performance that was photographed can attempt to sue the photo owner, but will probably lose in a court of law, due to the issue of displaying in a public setting.

      But what the heck, go ahead and sue, that is what copyright is for, civil suits, not criminal. Try and sue me for doing something like that, and I'll counter-sue for falsely claiming copyright on my copyright!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jul 2010 @ 3:54pm

    Props on a set are almost certainly copyrightable as sculptural works. There is also a composition copyright in the movie set as a whole including both created set props and the street and buildings.

    I don't know why people think that something has to be "private" to retain a copyright. As the owner of a work, I can choose to publicly display without giving up rights to the underlying creative work. Just because you can take a photograph without someone stopping you doesn't mean that photograph is legal.

    reply to this | link to this | view in chronology ]

    • identicon
      Monarch, 28 Jul 2010 @ 4:09pm

      Re:

      A photograph, or video of a performance, art, painting, or sculpture displayed in a public setting, is a derivative work. Only the owner of the photograph can own the copyright for the photo or video. Yes the original owner of the art or performance that was photographed can attempt to sue the photo owner, but will probably lose in a court of law, due to the issue of displaying in a public setting.

      But what the heck, go ahead and sue, that is what copyright is for, civil suits, not criminal. Try and sue me for doing something like that, and I'll counter-sue for falsely claiming copyright on my copyright!

      reply to this | link to this | view in chronology ]

    • icon
      BAlbrecht (profile), 28 Jul 2010 @ 5:06pm

      Re:

      No, sculptural works in a public setting are definitely not not something protected from filming by copyright. See this document (warning: pdf) for more guidance.
      Now, the area around the performance is certainly more grey. My guess-and, yes, it is an opinion-would be that an infringement claim would hinge around your usage of such a recording. Posting a limited amount of the footage on YouTube or used with journalistic intent should be exempt. But if you were selling that footage for direct profit you might find a jury to be sympathetic with the plaintiff.

      reply to this | link to this | view in chronology ]

    • icon
      TtfnJohn (profile), 28 Jul 2010 @ 7:23pm

      Re:

      The streets and buildings are public places, so you're displaying the sets in a public place easily visible by anyone around it.

      The copyright on the resulting composition which will be seen when the movie is released doesn't exist until the composition exists. (Yes, movie companies routinely copyright rushes but that's another story.) If the pictures or videos aren't treading anywhere near the composition just how can anyone be infringing anything? Particularly as it's happening in public place?

      Enquiring minds want to know!

      reply to this | link to this | view in chronology ]

      • identicon
        the truck living next door, 30 Jul 2010 @ 9:55am

        Re: Re:

        exactly! counselor might even suggest, "asked and answered" as the article explains filming on a public street ... sooner or later folks, we are all going to realize that if the *copyright owner* had wanted to protect the value of that copyright, they would have filmed on a green/blue/chartreuse screen in a lot that was owned/leased/bartered for in private. since we, the people, own the street ... and we, the people have a right to photo stuff on the street ... and the supremes say that there is no expectation of privacy on the street ... copyright infringement due to photos/videos/elaborate origami of said street are baseless

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Jul 2010 @ 4:14pm

    your in public filming a movie, don't you lose certain expectations when in PUBLIC doing things

    reply to this | link to this | view in chronology ]

  • icon
    Trails (profile), 28 Jul 2010 @ 4:40pm

    Transparent

    Obvious attempts to garner press for the franchise they very nearly murdered in RotF. Nothing to see here, except more justification for needed penalties of spurious DMCA takedown attempts.

    reply to this | link to this | view in chronology ]


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