Anti-SLAPP Law Used To Protect Michael Moore's Use Of Video Clip

from the slapp-back dept

We've been covering various stories about anti-SLAPP laws -- the important set of (state) laws that protect people who are sued not for any significant legal reasons, but in order to silence them -- and there's been a first ruling on Washington State's anti-SLAPP law, which is a bit different than the typical anti-SLAPP ruling. Thomas O'Toole points us to the news that filmmaker Michael Moore has prevailed over a privacy rights claim that was brought against him. Whatever you think of Moore as a fillmmaker (and, seriously, please don't turn the comments into a pro/con fight over Moore), this case is pretty interesting.

It involved a clip that Moore used in his film Sicko, that was sent to him by the subject of the video, but not by the guy who filmed it:
At issue was a snippet of video taken from several hours of tape Aronson shot while touring England with a friend, Eric Turnbow, in 1997. It showed Turnbow attempting to walk on his hands across Abbey Road and falling, injuring himself. It also contained a brief snatch of a song Aronson composed and sang. According to court filings, Aronson's voice and photograph appear in 16 seconds of the tape.

Turnbow, a fan of Michael Moore's, sent tape to the filmmaker in 2006. Moore was soliciting stories about health care outside the U.S. Turnbow's shoulder injury was treated in a British hospital, and Moore used it to compare the health-care systems in the two countries. However, Turnbow did not have Aronson's permission to send the tape, and Aronson never signed a waiver, although Turnbow did, according to the pleadings.
Aronson then sued, saying it was a violation of his rights, but the court tossed it out and ordered that Aronson pay Moore for filing a SLAPP lawsuit. Aronson's lawyer, not surprisingly, was not at all happy with the ruling:
"This wasn't a strategic lawsuit," he said. "This is a good man who had his videotape used without his permission."
It's definitely true that this does seem to be a rather broad interpretation of a SLAPP, but on the whole, such anti-SLAPP results are a good thing for free speech. Threatening or suing people for making a statement of any kind is problematic if you believe in free speech rights. It will be worth watching to see if there's an appeal in this case, as it could really bring out some questions about the limits on anti-SLAPP rulings (at least in Washington... but it could impact laws elsewhere).

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  • icon
    MarksAngel (profile), 9 Sep 2010 @ 5:50am

    This indeed seems to be a manipulation of the law. It sounds like the guy was upset his footage & song were used without permission, not that he was trying to silence Moore, whom I'm generally a fan of.

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

    • icon
      Richard (profile), 9 Sep 2010 @ 6:05am

      Re:

      I guess he's trying to turn Moore over for some money. He doesn't have my sympathy on that.

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

    • identicon
      Anonymous Coward, 9 Sep 2010 @ 7:05am

      Re:

      I am in the park with my camera.

      I ask a stranger to take my picture.

      He takes my picture, leaves, and is never seen again.

      Who owns the copyright to the picture?

      Myself, it was my camera and my idea.

      The stranger who helped by pressing the shutter release.

      IANAL But, law as I understand it says that the stranger owns it which on the face of the matter seems quite silly.

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

      • icon
        Mike Masnick (profile), 9 Sep 2010 @ 12:27pm

        Re: Re:

        IANAL But, law as I understand it says that the stranger owns it which on the face of the matter seems quite silly.

        Yup. I've discussed this exact scenario with a bunch of lawyers, and most of them will say that the stranger owns the copyright. Again many will admit that this is quite silly, though a few will argue that it makes sense. I once heard a convoluted explanation of how it could be seen as a work-for-hire situation, but I don't think that's very accurate.

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

  • icon
    Paul Alan Levy (profile), 9 Sep 2010 @ 6:19am

    Is it privacy or is it copyright?

    The lawyer's comment sounds a lot more like a complaint about copyright infringement than about privacy. That is not a basis for objecting to the anti-SLAPP ruling, because the state anti-SLAPP statute does not affect federal statutes.

    Checking the original story, there is in fact a copyright claim in the case that was not an issue on the SLAPP motion. Of course, Moore has a fair use defense.

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

    • icon
      Karl (profile), 9 Sep 2010 @ 7:11am

      Re: Is it privacy or is it copyright?

      Many anti-SLAPP laws specifically punish invalid copyright claims. It doesn't interfere with federal copyright law, as in order to be guilty of an anti-SLAPP law, by definition no federal copyright laws were broken.

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

  • identicon
    NullOp, 9 Sep 2010 @ 6:47am

    Huh!

    I am surprised by this ruling as Moore used the clip in a commercial venture i.e. "to make money". This, I feel, is significantly different than BigCorp suing "someone" for announcing BigCorps behavior of dumping trash in a creek where the "someone" is not in it for financial gain. But then again laws are so difficult to write and interpret. They often protect the crooks as well as the citizens.

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

    • icon
      Rose M. Welch (profile), 9 Sep 2010 @ 1:20pm

      Re: Huh!

      Many people make money, even in places where their intent wasn't to make money. Mother Theresa made money - she was sent thousands of dollars yearly from people. Were her interests commercial because she made money from them? Or were they non-commercial because making money wasn't her intent? In this case, is Moore's intent to educate the public, or to make money?

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

  • identicon
    NullOp, 9 Sep 2010 @ 6:51am

    BTW....

    M. Moore is the would-be documentary film makers best teaching tool. He uses the most clear cut tricks and broken logic in his films. He shows all the up coming film students what not to do in a documentary!

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

  • icon
    mike list (profile), 9 Sep 2010 @ 7:03am

    if aronson has a beef, ...

    ...it's with turnbow, although his pockets are probably much shallower than moore's.

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

  • icon
    Dark Helmet (profile), 9 Sep 2010 @ 7:18am

    Plausible Deniability?

    Isn't this a situation where Moore can claim to have acted in good faith? Or does that result in an injunction against the movie?

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

  • identicon
    Pendarus, 9 Sep 2010 @ 8:11am

    Corporations use anti-SLAPP to punish

    In California DirecTV and the RIAA have used the anti-SLAPP laws to punish people who fight them in court. One man had a judgment for $250,000 levied against him for claiming the "settlement" letters where harassment because no lawsuit had been filed before they were sent.

    DirecTV claimed that they had a first amendment right to send the settlement letters, and used the anti-SLAPP statute to have the case dismissed and collect lawyers fees of over $250,000. The RIAA has used a similar tactic to fight off class action lawsuits against them.

    Beware when corporations have the same rights as an individual.

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

  • identicon
    Anonymous Coward, 9 Sep 2010 @ 8:19am

    ""This wasn't a strategic lawsuit," he said. "This is a good man who had his videotape used without his permission." "

    Sorry, good people don't raise frivolous lawsuits.

    "It will be worth watching to see if there's an appeal in this case"

    If so, I hope the plaintiff ends up paying huge punitive damages for raising frivolous lawsuits.

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

  • icon
    Kingster (profile), 9 Sep 2010 @ 9:40am

    Methinks Aronson Doth Protest Too Much...

    http://ericturnbow.com/

    Reading through the site's main page (I'd link to a specific section, but can't - poor site coding) it appears that Turnbow owns the copyright to the song - purely. Aronson gave up his rights to that for 100 CDs of the album that he only helped in writing a part of the lyrics for one song.

    The video though, that's another story... Here's my question - if Aronson had wanted to send it in, he would have absolutely had to get a waiver from Turnbow, as he was the "subject" of the clip. I mean, that's why they fuzz out faces on Cops, right? But what about Turnbow? It looks to me like this may be one of those shitty Joint Ownership things, where the "Author" (in this case, Aronson) would own the rights, but couldn't do squat without permission from the subject, Turnbow. I dunno. It's all just silly really.

    Last point though, couldn't this all be done under Fair Use? I mean, it was for "educational" purposes (though Moore made dough, obviously).

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

  • identicon
    Mojo, 9 Sep 2010 @ 11:52am

    yeah this is all a moot point because the use of the video has nothing to do with the song playing in the background; the movie isn't about music nor does the music contribute to the film in any significant way, it's "just there."

    In addition, if the guy IN the video sent Moore a copy and gave permission to use it, from Moore's perspective everything was in order.

    And, of course, we're talking about a fairly generic 16 second clip in a feature film, so the "copyright holder" can't claim his clip is being used to greatly enhance the movie without being compensated.

    I would agree this guy figured he could squeeze some cash out of a big fish.

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

  • icon
    Pangolin (profile), 9 Sep 2010 @ 12:25pm

    Why did he sue?

    Money?

    Seems like a good result.

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

  • icon
    Paul Alan Levy (profile), 9 Sep 2010 @ 12:34pm

    SLAPP statutes and invalid copyright claims

    Karl asserts:

    Many anti-SLAPP laws specifically punish invalid copyright claims.
    ----

    I hope you will cite one. The SLAPP statutes are all state statutes. The complete listing is here. http://www.casp.net/statutes/menstate.html. Which one specifically applies to invalid copyright claims?

    Copyright claims are exclusively within the jurisdiction of the federal courts. To be sure, in the Ninth Circuit, and in Georgia, perhaps in some other jurisdiction, courts have held that the SLAPP statute can be invoked when state-law claims are brought in federal court, such as pursuant to diversity jurisdiction. But those cases also say that the statute does NOT apply to federal-law claims in the same case.

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

  • identicon
    Tex, 14 Sep 2010 @ 7:24am

    Another SLAPP Lawsuit

    Here's another SLAPP lawsuit, and Amway lost BIG TIME last month: http://texsquixtarblog.blogspot.com/2010/08/amway-lawsuit-update-dont-mess-with.html

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


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