Copyright Being Used To Prevent Actress From Showing Her Own Demo Reel

from the fair-use-guys dept

Lawyer Stephen Doniger seems to be going out of his way to file lawsuits that involve creative interpretations of copyright (and by "creative" I mean "wrong.") You may recall that Doniger was the lawyer behind Playboy suing Boing Boing for copyright infringement for linking to an Imgur collection of Playboy centerfolds. That case went so poorly that the judge tossed it out in just two months. Before that, Doniger made a name for himself (I kid you not) being a fabric copyright troll, filing loads of lawsuits against companies offering similar designs on fabric. He's also jumped in on the whole situation created by the "Blurred Lines" mess by filing a bunch of "sounds alike" copyright cases.

It's almost as if he's filing all sorts of nutty copyright cases just to demonstrate for us just how ridiculous modern copyright law has become, and how far from its purpose it has strayed. Indeed, that's about the only explanation I can find for a new filing by Doniger, as noted by the Hollywood Reporter, in which Doniger, representing director Robin Bain is suing actress Jessica Haid for using a clip of the film, Nowhereland in her own demo reel.

In short, Bain claims that Haid asked for permission to use clips in her demo reel and Bain refused (nice of him). She then got a copy of the film and gave it to another company to include it in her demo reel. Bain is now suing, claiming it's an "unauthorized derivative work." Indeed, the lawsuit claims that the clips in the demo reel "included a significant amount of unreleased footage from The Film, which taken together, encompassed the heart of The Film, as well as revealed the ending to The Film."

The claim that this uses "the heart" of the work is an attempt to get around a fair use claim and a reference to the famed Harper Row v. Nation Enterprises case. Looking over the fair use factors, it seems hard to see how this isn't fair use. It's clearly transformative. The use is quite different than the movie itself -- it's a small clip used to advertise the actress, not to show the film. Despite the claims of this being "the heart" of the film, it's still just clips for a demo reel, rather than the full film. And, finally the impact on the market is going to be nil. Or, if anything, it might encourage people to see the full film (unless the film sucks, of course).

Either way, I can't imagine that this is what the framers of the Constitution imagined when they were putting in place the copyright clause. How the hell does it "promote the progress of science" to have a director sue an actress for advertising her acting ability? But, as yet another example of just how ridiculous copyright law is these days, it works perfectly. So thanks Stephen Doniger for adding to the list of examples of ridiculous copyright lawsuits.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Killercool (profile), 22 May 2018 @ 3:46pm

    I hate to tell you...

    If a clip, or even several clips, from your movie is equivalent to seeing your movie, then your movie is bad and you should feel bad.

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

    • identicon
      Anonymous Coward, 22 May 2018 @ 3:48pm

      Re: I hate to tell you...

      Have an insightful and a funny vote.

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

    • identicon
      Thad, 22 May 2018 @ 5:07pm

      Re: I hate to tell you...

      But what about all those movies where if you see the trailer, it's like you just saw the whole movie?

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

    • identicon
      Anonymous Coward, 22 May 2018 @ 5:47pm

      Re: I hate to tell you...

      I'm wondering how they can claim these clips make up "the heart of The Film", when they're not even in the film.

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

      • identicon
        Anonymous Coward, 22 May 2018 @ 7:48pm

        Re: Re: I hate to tell you...

        It appears that the demo reel uses clips from a copy of the director’s supposedly unreleased and watermarked film. Without a copy of the reel to view, it isn’t possible to make any informed judgement about the facts stated in the complaint.

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

        • identicon
          Anonymous Coward, 23 May 2018 @ 5:45am

          Re: Re: Re: I hate to tell you...

          I don't see any reference to it being an unreleased film. Trade secret law would be more applicable than copyright if true.

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

          • identicon
            Anonymous Coward, 23 May 2018 @ 5:57am

            Re: Re: Re: Re: I hate to tell you...

            For example, see page 3, line 17 of the complaint.

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

            • icon
              PaulT (profile), 23 May 2018 @ 6:17am

              Re: Re: Re: Re: Re: I hate to tell you...

              Also, the IMDB link shows that the film wasn't released until last month (assuming info there is correct, which is not always true), which the incident in question took place in 2015/6.

              In short, it looks like the director's spent a couple of years trying to get his baby distribution, he's pissed off that footage has been seen before release and he's found a lawyer willing to take his money.

              Understandable, but in a film market as crowded as the current one you'd probably be better off getting positive buzz for your film rather than being known as the production suing its cast.

              By the way, although there's no birth date listed, the synopsis states that Haid's character is meant to be 15, which raises the possibility that the director was waiting until she reached 18 before suing. That adds a whole other layer to this, if true.

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

  • icon
    Toom1275 (profile), 22 May 2018 @ 4:30pm

    and by "creative" I mean "wrong.

    The term I've most often seeing judges use is "novel." As in, "I've never before heard of anyone trying to use this argument."

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

    • icon
      That One Guy (profile), 22 May 2018 @ 4:39pm

      Who says you can't hand out burns with understated language?

      And when a judge is telling you your interpretation of the law/argument is a 'novel' one, you know you've screwed up and are about to have a bad time.

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

  • identicon
    Anonymous Coward, 22 May 2018 @ 6:52pm

    Death + 70

    So is this locked up 70 years after the death of the actress, the director or the photographer?

    Or until 70 years after the heat death of the universe, I guess.

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

  • identicon
    Anonymous Coward, 22 May 2018 @ 7:34pm

    First off, let's use the whole line from the constitution, "To promote the Progress of Science and useful Arts".

    Now, judging from that line, NO entertainment or fiction copyright is valid, so focusing on this specific one on the basis of that line is silly, unless you want to eliminate copyright protection for the entirety of the movie/music/television industries. (If you do want to, well I do too, but go ahead and apply it everywhere)

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

    • identicon
      Anonymous Coward, 22 May 2018 @ 7:44pm

      Re:

      That's not what the line means.

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

      • identicon
        Anonymous Coward, 22 May 2018 @ 9:19pm

        Re: Re:

        So what did they mean by "useful'?

        But I'd read that clause as non-normative—as describing the intended effect of the power rather than a restriction thereof.

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

    • identicon
      Anonymous Coward, 23 May 2018 @ 5:51am

      Re:

      You don't consider fiction to be art?

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

      • identicon
        JEDIDIAH, 23 May 2018 @ 8:57am

        Re: Re:

        Perhaps he doesn't consider fiction to be useful.

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

      • identicon
        Anonymous Coward, 23 May 2018 @ 9:31am

        Re: Re:

        In the context of Article 1, Section 8, Clause 8 of the US Constitution, the term “science” relates to copyright and the term “useful arts” relates to patents.

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

        • icon
          The Wanderer (profile), 25 May 2018 @ 5:31am

          Re: Re: Re:

          I usually mentally translate it to something closer to "to promote the advancement of knowledge and of techniques for doing useful things", as being the rough equivalent in more modern terminology.

          And, yes, under that definition there doesn't seem to be very much room for having copyright apply to fiction. The only angle on it I can see is the idea that fiction can help disseminate (promote) otherwise-unfamiliar ideas (knowledge) to the public; that seems to have been the way e.g. Heinlein used it, and it might qualify, if you interpret things a certain way.

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

  • identicon
    Anonymous Coward, 22 May 2018 @ 7:54pm

    out_of_the_blue's heroes, ladies and gentlemen. Saving artists, one step at a time! /sarc

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 May 2018 @ 9:25pm

    I see so much about this out_of_the_blue...

    ...and how horrible he is that I just had to look up what wrote.

    Here's actual out_of_the_blue comments, not the wacky lies that "ACs" spread:

    Fundamentals of Rational Copyright. Somewhat redundant to clarify related aspects. Don't worry if you can't grasp these all at once: I'll be using magic to post it often.

    >> Copyright is derived from the facts of existence; it is natural law and cannot be narrowly defined; it is self-evident like the US Constitution itself which is only valid UNDER common law; statute is at best tertiary.

    ) Creators inherently have SOLE RIGHT TO COPY their work.

    ) Creating is and has always been more difficult than copying.

    ) The special provisions in law for copyright stem from the above 2 facts. It's specific setting out of "intellectual property" rights for creating works given the relative ease of copying.

    ) Copyright specifies WHO can gain money from the works, AND that no one else is to gain money from them. (For a limited time, but after in public domain, it's still unethical to grift on the work of others; ONLY the cost of reproduction should be charged.)

    ) Copyright law is indeed exactly to prevent TWO types of THEFT (during the limited time): 1) by commercial scale copiers directly profiting 2) by the general public taking the work without rewarding creator. Only creators may make copies or attempt to gain from it during that (limited) period.

    ) There are NO rights whatsoever granted to or held by copiers. No one's "right to copy" is at any time removed or diminished because it never exists prior to the creation of a work.

    ) Morally and practically, copyright is valid because exists independently of and without conflicting anyone else's rights. -- Pirates obviously want to deny the moral basis of "I made it, therefore I own it", and for practical objection point to the increasing controls that they cause by stealing.

    ) Machines doing the labor of copying doesn't confer any new right to do so.

    ) Copyright has a worthwhile societal purpose to encourage the creation of various works, even if only for trivial entertainment.

    ) Many like to jeer that copyright exists only until a creation is shared with others -- after that you've no claim to it! Then anyone can take the work that you did and try to grift off its value for themselves. But that's advocating law of the jungle apply to creators while enabling grifters and pirates to use the very tools of civilization to STEAL the creations. It's just not FAIR. -- No one will say that laborers don't have right to the fruits of their labor (except so far as they advocate slavery, and some DO). Copyright is the SAME common law, fundamental recognition of who's due the rewards for having produced, except applies to non-material products. The creator puts in work with hopes of profit, relying on the stated terms of civilized society that the public assure monopoly for a limited time so that the very potential for rewards isn't stolen by either grifters or pirates.

    ) Even indirect income from in any way providing "for free" the protected work of others is clearly illegal, undeserved, immoral, and unethical.

    ) Putting entire digital movie / music files online for anyone to download is NOT sharing, not fair use, nor fair to its creators; it does remove some degree of potential profit and some degree of actual profit.

    ) Copying rights are granted by the public for the public good (or was until unilaterally changed by moneyed interests) and we all have a general duty to respect the special provisions made for creators of non-physical works.

    ) Possession of authorized physical media is license to access the content any number of times (which can be one-at-a-time library use, yet not "public" display). In the absence of physical media, there's no clear right to access content, only perhaps an authorized temporary permission. But at no time does possession of digital data confer a right to reproduce it outside of the terms and conditions as for physical media, no matter how easy it is to do so.

    ) Emphasizing an aspect of the just above point: digital data is even less "owned" by the purchaser than with physical media, not more.

    ) When independently rendered, fashion "ideas", "art" in general, "look and feel", jokes, bits of wit, and musical "riffs" are not copyright-able because not significant effort. Don't throw those in to confuse the topic. (Specific clarification for music: you may render "stolen" riffs to parody or add spice, but not use actual "sampled" audio as basis for your main theme.)

    ) Many persist in using the canard of "copyright can't guarantee income". -- Misleading. From the US Constitution it's been to assure creators a monopoly on the ATTEMPT at income from a given work for a limited time period. No one else has the right to even MAKE such attempt, nor to GRIFT off the content value either directly or indirectly (as a draw for eyes to advertisements).

    ) Nothing above is invalidated or weakened by results being imperfect, nor by attempts to indefinitely extend time and scope of copyright: the latter are driven by greed and should of course be resisted, but by more general means.

    ) If you advocate taking copyright away from Disney after its long abuse and extension, then FINE! -- But don't at same time empower mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. -- Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain.

    [Last revised 17 January 2014]

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

    • icon
      That One Guy (profile), 22 May 2018 @ 10:49pm

      Choices choices..

      I'm not sure which possibility is crazier, that Blue just copy/pasted a bunch of their lines pretending to be a 'concerned anonymous person', or that an actual poor sod just spent an insane amount of time wading through their comments and picked out a selection of semi-coherent lines from the batshit crazy.

      I strongly suspect it's the first, as anyone who actually went through Blue's comment history and still came away thinking they were reasonable or even not plagued with problems of all sorts would almost have to have a number of problems of their own.

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

    • identicon
      Anonymous Coward, 23 May 2018 @ 1:03am

      Re:

      Creators inherently have SOLE RIGHT TO COPY their work

      Which this actress couldn't do, so blue's rules have failed from the very first step. Nice try, concern troll!

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

      • icon
        That One Guy (profile), 23 May 2018 @ 12:21pm

        Re: Re:

        It's also flawed for any other number of reasons, from that pesky 'fair use' being a thing, to the fact that there's nothing 'inherent' about a 'right' you only have thanks to a government granted monopoly, without which anyone can copy anything at their leisure.

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

  • identicon
    Agammamon, 22 May 2018 @ 9:47pm

    I'm uncertain as to how unreleased footage - ie stuff left out during the editing process, a deliberate decision that these parts *were not* the 'heart of the work' - could be part of the heart of the work.

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

    • icon
      Madd the Sane (profile), 22 May 2018 @ 10:37pm

      Location of the heart

      The director had to seal the heart of his work away, lest someone steal it. He put it in the last place anyone would look. Too bad the actress wasn't looking for the heart, because apparently she found it.

      Now they'll ride off into the sunset together, live happily ever after, and have many babies. How can a movie have babies? Eh, life finds a way.

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

    • identicon
      Anonymous Coward, 22 May 2018 @ 11:22pm

      Re:

      Uh...the stuff was part and parcel of the film submitted for consideration by the LA FF. This should be clear from the excerpts being taken from a copy of the submittal provided to the actress by someone at the LA FF.

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

  • icon
    PaulT (profile), 23 May 2018 @ 1:09am

    "which taken together, encompassed the heart of The Film, as well as revealed the ending to The Film.""

    So, most trailers cut in the last 15 years or so are wrong under copyright law, or does this just count when it's not your own promotional material doing this? I absolutely avoid trailers if possible for this very reason - they give too much away, often even the ending. I can even name films where the ending is on the damn poster! Then they wonder why I don't travel 20 miles to the nearest cinema to watch every new release like I used to...

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

  • identicon
    Anonymous Coward, 23 May 2018 @ 1:53am

    Unpublished, Right of First Publication

    Other factors include the fact that the work is unpublished and the Right of First Publication.


    https://www.law.cornell.edu/copyright/cases/811_F2d_90.htm
    SALINGER v. RANDOM HOUSE

    right of first publication...

    Pertinent to our case is the fact that the Court underscored the idea that unpublished letters normally enjoy insulation from fair use copying...

    Salinger has a right to protect the expressive content of his unpublished writings for the term of his copy-right, and that right prevails over a claim of fair use under "ordinary circumstances,"
    ...

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

  • icon
    Ninja (profile), 23 May 2018 @ 4:50am

    That sense of entitlement most copymorons seem to have. Imagine if she sues him for performance rights?

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

  • identicon
    Anonymous Coward, 23 May 2018 @ 6:08am

    This even contradicts the MPAA's whole narrative that copyright needs evermore powers and extensions to curb pirates so artists can be paid fairly for their work. It essentially tries to throw an artist under the bus.

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

  • identicon
    Anonymous Coward, 23 May 2018 @ 6:11am

    Expanded fair use after 28 years

    I think fair use should be greatly expanded after 28 years, which is the original term for copyright.

    What should happen is that, after 28 years, public performances should fall under fair use, unless you are actually selling the product. If a theater wanted to show the canon Star Wars films, they should be able to do so as fair use, as long as they aren't selling the movies. Movie goers could see the movie, but when they walk out, they don't have a copy.

    Same thing for books and music.

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

    • icon
      That One Guy (profile), 23 May 2018 @ 12:06pm

      Re: Expanded fair use after 28 years

      I could see it as a form of damage control, but if you're going to tweak the law I'd say it would be much better to address the main issue, the effectively eternal duration, rather than the resulting problems.

      If copyright actually had a sane duration a lot of the issues(though not all) relating to it would be, if not eliminated, then at least significantly reduced.

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

    • icon
      Rourke Decker (profile), 23 May 2018 @ 1:40pm

      Re: Expanded fair use after 28 years

      I think the original term of copyright was seven years. Of course, we're talking about the days of Queen Anne back in jolly old England, but you get the picture.

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

    • icon
      Rourke Decker (profile), 23 May 2018 @ 1:44pm

      Re: Expanded fair use after 28 years

      The original term of copyright in the United States was 14 years, renewable for an additional 14-year term. Upon the expiration of the second term (or first if copyright were not renewed), the work lapsed automatically into the public domain.

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

  • identicon
    Anonymous Coward, 23 May 2018 @ 6:12am

    Copyright should never be retroactive

    It's stupid to try and make copyright retroactive. It should only apply to works going forward. It's using the Government to steal works that should be in the public domain.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 May 2018 @ 2:22pm

    Literally every second of every day copyright rewards authors and artists for their hard work and effort.

    Yet Mike Masnick continues to seek out bizarre outliers to try and convince other mentally ill people that copyright is horrible.

    Seriously Mike, it’s time for you to show us where on the doll copyright touched you.

    Or maybe just be transparent about how the tech industry funds your silly screeds...

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

    • icon
      Killercool (profile), 23 May 2018 @ 3:55pm

      Re:

      Ahh, outliers. A statistics term that does not mean what you think it means.

      Outliers only stay outliers if they are statistically insignificant.

      All of these outliers you think are being talked about here?

      Those, my friend, are a trend.

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

    • identicon
      Anonymous Coward, 23 May 2018 @ 6:26pm

      Re:

      How's that Paul Hansmeier defense fund working out for you, bro?

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

    • icon
      PaulT (profile), 24 May 2018 @ 12:50am

      Re:

      "Literally every second of every day copyright rewards copyright owners for the hard work and effort of authors and artists"

      Fixed that for you. It also prevents a lot of other people from having their work seen at all, let alone in a form that pays them or their heirs anything. But, we know you don't think that anything not pre-approved by a corporation within the last 20 years is real art anyway.

      "Yet Mike Masnick continues to seek out bizarre outliers to try and convince other mentally ill people that copyright is horrible."

      Yet, as you constantly prove, the mentally ill are immune to facts and continue to hold every claim of the corporations that depend on copyright as gospel, even as they are constantly proven wrong.

      But, your support of artists being sued for sharing their own work has been noted.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.