Copyright Fight Over Competing Abortion Videos Results In Awkward Fair Use Ruling

from the why-must-it-be-parody dept

Okay, let's just start out this post by noting the fact that abortion is an extremely controversial issue where people have very, very strong feelings on both sides. This post -- indirectly -- does deal with the debate over abortion, but it is not the point of the post, nor does the debate over abortion have anything whatsoever to do with the topics of interest here. Thus I am making a request, up front, that the comments on this post focus on the copyright issues raised by this ruling.

The case involves a clinic that performs abortions, Northland Family Planning, which made a video about the procedure. Another group, which opposes abortions, the Center for Bio-Ethical Reform, took those videos and made its own versions, with a very different message. I'm not going to embed the videos, but you can find the Northland video here or here. You can see the CBR video here (this one is NSFW). Northland was unhappy about CBR using their video to create one with a very different message... and sued, claiming copyright infringement.

The district court ruling found that the CBR video was fair use, though it did so in a convoluted and twisted way -- basically arguing that the new video was a "parody" of the original. It basically did this to try to fit with the clear rulings around parody, but in doing so avoided clear statements of how transformative use in a non-parody setting, for commentary or criticism, can also be fair use. Rebecca Tushnet's writeup goes through, in great detail, how the court seemed to get pretty contorted in trying to make this about parody, even when it's not really. That's unfortunate, because it makes perfect sense that the CBR video is fair use -- and it's obvious that Northland sued not because of worries about the copyright, but rather because it disagreed with the message CBR was spreading. That's a misuse of copyright law, but one that is all too common.

The first line in Tushnet's post makes the point about this kind of copyright abuse:
Here’s a rule worth following: Don’t sue your critics for copyright infringement.
It's just too bad that the court couldn't make a simple ruling on the clear fact that the lawsuit was really an attempt to stifle a disagreeing viewpoint, rather than any of the basic rationales for copyright. Twisting this into a "parody" case makes for some awkward and slightly unbelievable claims in the ruling, when a statement on how commentary and criticism can be protected fair use would have been much more worthwhile.


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    Brian Schroth (profile), Jul 6th, 2012 @ 12:30pm

    not so sure we can easily lump this in under criticism/commentary

    "fair use" criticism is criticism of the work, not just criticism in general. I can play a clip of a song to criticize the song, but I can't use the song as the soundtrack for my movie that criticizes some politician. Same for fair use commentary- the idea behind these fair use exceptions is that people need to be able to comment on and criticize works, and they will need to use pieces of the work in order to do so effectively. But it you use pieces of the work to comment on or criticize something completely different, that's no longer fair use. It seems like a stretch to say that this is a commentary on the video- it seems to be more a commentary on abortion in general.

     

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      Chosen Reject (profile), Jul 6th, 2012 @ 12:55pm

      Re: not so sure we can easily lump this in under criticism/commentary

      I don't see it as a commentary of something completely different. Your example of a using a song in a movie that criticizes a politician isn't even close. If the politician had written a song about anti-corruption, and your movie was about political corruption and that particular politician was corrupt, and you used his song, I see that as criticism and parody.

      However, without seeing the videos, I can see how it could be parody. Just because you are talking about a serious subject that people have very strong feelings on does not mean you can't use some very dark parody. Heck, wikipedia says that Parody "is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation". I'd says it's pretty ironic to use a pro-abortion video to mock, comment on or trivialize pro-abortion stances in an anti-abortion video.

       

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      DannyB (profile), Jul 6th, 2012 @ 1:15pm

      Re: not so sure we can easily lump this in under criticism/commentary

      Fair use criticism can be criticism in general and not just criticism of the work itself.

      For example, if I want to criticize Fox News, or maybe CNN instead, it is fair use to make use of a clip of their work -- even though I may not be criticizing the actual work.

      Perhaps a better example, if I wish to criticize a US congress critter (no matter which party) it would be fair use to include from a copyright work of theirs if it supports the critical argument -- even though it is not the work itself being criticized.

       

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    Al Bert (profile), Jul 6th, 2012 @ 12:52pm

    someone had to do it

    Thank you for the plea for relevant commentary, Mike. I read the headline and reflexively braced for another tangential comment war.

     

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    Anonymous Coward, Jul 6th, 2012 @ 1:00pm

    Abortions for some, tiny american flags for others

     

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      G Thompson (profile), Jul 6th, 2012 @ 1:08pm

      Re:

      what do American flags or anything about flags have to do in that context?

      NO.. Don't tell me, The rest of the world has the context of these videos as a non-issue and no politician would be caught dead by their wife in even raising it. Only in America is it an "election issue" *massive eyeroll of stupidity*.

      Getting back to the matter at hand, I agree with Mike.. stupid ruling that came to correct answer. Parody is NEVER this. Commentary of puplic interest situation (only in the USA mind you) would of been much better and correct.

      You lot are really weird about womens bodies, and what you think they should or shouldn't be allowed to do with them.. Think the court tried to act in an impartial manner by actually showing bias by making the case about the context of the videos and not the specific data copied and its usage itself. Nucking Futs!

       

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        Wally (profile), Jul 6th, 2012 @ 1:36pm

        Re: Re:Parody

        The title might be considered parody, and parody is not always supposed to be funny.

        Parody is sometimes the best way to protest the stupidity and moral wrongdoing at hand. It brings about public awareness of problems and gets people aware of their surroundings. Now if it were satire, I'd have an issue...satire makes direct fun of it (given the subject, abortion isn't funny, it's just sad and unethical).

        The tittle that CRB gives "The MOST SHOCKING AND DISGUSTING VIDEO YOU WELL EVER SEE," is generally the parody part, the video is unchanged.

         

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          Anonymous Coward, Jul 6th, 2012 @ 3:35pm

          Re: Re: Re:Parody

          Ix-nay on the olitics-pay.

           

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          Anonymous Coward, Jul 9th, 2012 @ 9:13am

          Re: Re: Re:Parody

          no, whats shocking and disgusting is you deciding what right and wrong, whats moral and ethical for others, take your morals and ethics and shove them up your ass

           

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      E. Zachary Knight (profile), Jul 6th, 2012 @ 1:42pm

      Re:

      One of the best Klang and Krang Treehouse of Horror episodes ever.

       

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    Wally (profile), Jul 6th, 2012 @ 1:25pm

    Ethics

    CBR is covered on grounds that the procedures involved in an abortion. Are not copywrittren and are documented in medical journals. The fact that parody is covered by the constitution as well as protesting against ethics you deem immoral. The fair use clause is allowed because it is well documented how to perform an abortion.

    Not to say anything either way Mike, but most people outside of the medical community really don't understand Abortions in planned parenthood (which is more like a beurocracy) go against the Hypocratic Oathe they are sworn into upon getting their MD. I mean I'm one who is against abortion, and maybe CBR is too. The point is CBR has right to protest and show their disgust this way, and it does accurately portray what procedures are done and how they are executed.

    There are great alternatives to abortions, may not be as effective at preventing, but it doesn't hurt as much to use them as it does abortion. My ethics on abortion are slightly mixed. It disgusts me for two reasons.

    1. At three weeks, you have nerve endings, a beating heart, the capability to move around and kick, and smile....I cannot kill things that smile at me.

    2. It puts the mother in more harm and can cause massive infections. You have to keep your uterus' outside at a certain temperature...anything higher or lower will either cause infection, or make it useless for further child bearing.

    3. It costs more on average for an abortion. The procedure isn't covered on most health insurance plans because of the risks involved. It is cheaper to get condoms and BC pills and far less risky to your health

    Now, try not to get me wrong, there are certain cases where the baby needs to come out where it dies in the placenta....but they enduce child birth to do that, and while it is a ton more painful...it's short term physically.

    Sorry about the spark of debate, buy honestly I think CBR is doing the right thing.

     

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      art guerrilla (profile), Jul 6th, 2012 @ 1:51pm

      Re: Ethics

      do i own my own body, or not ?
      answer that, and you've answered the abortion issue...
      art guerrilla
      aka ann archy
      art guerrilla at windstream dot net
      eof

       

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      Anonymous Coward, Jul 6th, 2012 @ 1:52pm

      Re: Ethics

      You first paragraph deals with copyright. The rest is not relevant to this.

       

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        Wally (profile), Jul 6th, 2012 @ 2:43pm

        Re: Re: Ethics

        Im well aware of that, my end goal is just stating my beliefs on Abortion as it is a dangerous procedure. Considering that's what the CBR is stating about the video, it's sort of relevant in most respects. The judge ruled wisely because while the video is copyright material, it is considered a medical journal. The procedures are documented digitally to show customers the procedures.

        As for any irrelevant statement "It's my body, I can do what I want with it," you have every right ruin your reproductive system any way you like. If you have a problem with that, use BC or a condom, or if you are just that fertile, there are ways of making love without penetration or touching yourself.

         

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      Chronno S. Trigger (profile), Jul 6th, 2012 @ 2:08pm

      Re: Ethics

      "CBR is covered on grounds that the procedures involved in an abortion. Are not copywrittren and are documented in medical journals. The fact that parody is covered by the constitution as well as protesting against ethics you deem immoral. The fair use clause is allowed because it is well documented how to perform an abortion." (the relevant part of your post)

      If I make a video about how to do CPR I still own the copyright on the video even if the knowledge I have is from a well documented book. If someone copies my video (in a way that's not covered by fair use) then they have violated copyright laws. That is the debate at hand, not the information, but the video itself. Is using the video the way they did fair use?

      The judge says it is commentary on the video where we see it as commentary on abortion as a whole. Using the work as commentary on the work itself is protected by fair use where as using the work as commentary on something else is not. I see it as both, they're doing commentary on both the video and abortion as a whole.

       

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      Anonymous Coward, Jul 6th, 2012 @ 2:38pm

      Re: Ethics

      Hey stupid, RTFA. Hell, just try the first three sentences.

       

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      Anonymous Coward, Jul 6th, 2012 @ 2:40pm

      Re: Ethics

      "Abortions in planned parenthood (which is more like a beurocracy) go against the Hypocratic Oathe they are sworn into upon getting their MD."

      Including abortions to terminate pregnancy due to rape or incest?
      You are one sick boy, boy.

       

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        Wally (profile), Jul 6th, 2012 @ 2:49pm

        Re: Re: Ethics

        I sense sarcasm, but in case you are serious, I would hold up on the rape/ insest clause is sort of irrelevant, most cases give them up for adoption. And most fetuses and babies born of incest die within a week of being born.

         

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          DogMama, Jul 6th, 2012 @ 3:15pm

          Re: Re: Re: Ethics

          Um, can you cite any sort of study at all about rape/incest? Claiming that babies who are the product of incest die within a week of birth is patently absurd.

           

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          Anonymous Coward, Jul 6th, 2012 @ 3:33pm

          Re: Re: Re: Ethics

          "And most fetuses and babies born of incest die within a week of being born."

          No, they don't.

           

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        AzureSky (profile), Jul 6th, 2012 @ 4:08pm

        Re: Re: Ethics

        in the eyes of these people, theres ZERO justification for abortion ever, if it kills the mother and the child due to complications, then "its gods will"

        I say this having had this debate with well over 100 of these people over the past 15years...

        i love how he says most babies/fetuses die within weeks if they are from incest....funny, I have read up on this and the research I have seen actually says they tend to be fine, just higher risks of whatever genegic medical problems the family carries.....

        still....this is the kinda moron who would advocate for a 9yo was raped by her uncle to give birth.

         

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      AzureSky (profile), Jul 6th, 2012 @ 4:02pm

      Re: Ethics

      bet you this lovely fellow who is pro life is also pro war.....most who hold his opinions feel the life of a fetus must be protected but the lives of those who have been born...not so much.

       

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        Anonymous Coward, Jul 8th, 2012 @ 11:03am

        Re: Re: Ethics

        No one is pro war.

        they might be pro defend ourselfs from hostile forces, pro steal resources from other countries or pro cleanse the undesirables but non of them are to keen on the wars themselves

         

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          alanbleiweiss (profile), Jul 8th, 2012 @ 12:28pm

          Re: Re: Re: Ethics

          anyone who is "pro steal resources from other countries" to the point where they make up attacks against our country in order to justify war, and to jack up military spending to insane amounts, is, without a doubt, pro war. To think or believe otherwise is naive.

           

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      apauld (profile), Jul 8th, 2012 @ 12:01am

      Re: Ethics

      sorry, but after reading Wally's post for the last 36 hours or so, I have to go there.....

      Wally, Mike asked that this remain a discussion about the copyright issues. Despite Mike's request you have thoroughly attempted to make this about your religious beliefs.

      So here is what I believe; you, Wally, are the reason that long ago women should have been forced to abort babies. You should have never been allowed to exist in any sane society.

       

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      Anonymous Coward, Jul 9th, 2012 @ 9:26am

      Re: Ethics

      wow, your an idiot

      first, any doctor who does any surgery to not save your life, is guitly, according to you

      and it is a bunch of useless words

       

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    Sad Mac (profile), Jul 6th, 2012 @ 1:44pm

    Religious groups.

    It should be known that the CBR has almost no connections to any religious groups.

     

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      Anonymous Coward, Jul 6th, 2012 @ 2:40pm

      Re: Religious groups.

      Irrelevant

       

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        Wally (profile), Jul 6th, 2012 @ 2:52pm

        Re: Re: Religious groups.

        Don't be too hasty with the irrelevance argument. The group is an anti abortion group, but they have medical basis to back up their facts. But yes Sad Mac, it is sort of irrelevant to state it.

         

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    Anonymous Coward, Jul 6th, 2012 @ 1:54pm

    I see this akin to quote mining - editing something totally out of context into something which is the exact oppose of the original message.

    Whether this is fair use or not - it probably is, but I think it's an underhanded way of doing so.

     

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    Tony MC (profile), Jul 6th, 2012 @ 5:03pm

    Criticism

    I like how people who hold a rigid set of beliefs don't allow comments on their videos.

     

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    Anonymous Coward, Jul 6th, 2012 @ 5:31pm

    I've had first had experience with the CBR. During my freshmen year in highschool they thought it would be a good idea to protest in front of our school with billboards of aborted fetuses just in time for the 8AM buses to show up. My high school was also about 500 feet from an elementary school so all the kindergarteners got to see the billboards as well. I regard them as professional trolls just like the WBC and any message they are trying to get across gets lost in the fact that they're giant flaming asshats.

     

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    alanbleiweiss (profile), Jul 6th, 2012 @ 11:37pm

    wait. I'm confused. we're talking abortion right? Like the abortion that is our federal government? the abortion that is USTR? RIAA? Charles Carreon?

    Oh... the OTHER abortion.

    NAFTA.

    got it.

    Yeah - those abortions should all be illegal and oh. wait. were my reference parody? yeah. fair use!

     

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    Claudia, Jul 7th, 2012 @ 6:04pm

    I think it counts

    This is definitely parody. I agree with the ruling.

    But I also had to comment to say that when I went to the "pro choice" page to look at their original video I thought I had made a mistake and gone to the "pro life" page!

    How can those people call themselves "pro choice"? They go on and on about what a "difficult" decision abortion is.

    If I went to get an abortion and someone started talking about the "difficult choice" of abortion I'd think I'd wandered into one of those fake clinics the evangelicals had set up. News Flash: For most of us getting an abortion is not "difficult" on any level.

    To make it worse... they reassure the viewer over and over again that "good women" get abortions all the time. How condescending is that?

     

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    Lance (profile), Jul 7th, 2012 @ 10:04pm

    Hate to see where this would have gone...

    At the top of the page, it was requested that the posts be focused on the relevance of the copyright ruling. I didn't get more than a few posts in before I started seeing posts from both sides of the abortion debate. By the time I got through half of the posts, it seemed like the copyright issues had been completely forgotten.

    I understand the passionate beliefs on both sides of the abortion debate, but I'm disappointed to see that so many in this community cannot keep to the subject at hand. /end-rant

    I wonder if the judge made use of the convoluted argument because he didn't find the usage consistent with "fair usage" (i .e. it was too transformative) . Thus, his only alternative was to up the ante by calling it parody.

     

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    Anonymous Coward, Jul 9th, 2012 @ 3:10pm

    isn't gestating a fetus a form of "copying" ?

     

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