The concern isn't trademark, but copyright. Article I, Section 8 of the U.S. Constitution provides that authors will have, for limited periods, exclusive rights in their works of authorship. "Exclusive" means exclusive.

Blame the Constitution, as it is the source of the right. I'm dealing with a similar issue just now, involving a documentary producer and a film that includes a 6-second clip for which rights can't be obtained. In this instance, it comes down, I think, on the side of fair use, but it's a gamble. This is a pro bono client, so I'll have to see whether my firm wants to take the risk of representing the producers if they are sued, and also whether the producers want to take the risk of getting sued. It may not be fair, but the alternative is many times worse.

If a legal system can't be fair and deal with issues of right and wrong, doesn't that kind of negate any justification for having one in the first place?

The primary purpose of a legal system is to ensure predictability in social intercourse. Social interaction can't happen without commonly-understood rules.

Copyright law recognizes concepts of right and wrong -- fair use doctrine is an equitable doctrine, meaning that it incorporates fundamental concepts of fairness. The problem is, no one seems to recognize the nature of the copyright. It is an absolute right of ownership, per the Constitution, and always has been. Saying that copyright law shouldn't apply when 5 seconds of a Simpson's episode is playing on a TV in the background of a film is like saying it's not grand theft auto to take my car for a joyride at night because I'm not using it then.

Fair use doctrine ensures that if there's a compelling public need (usually defined in the context of a First Amendment interest), then copyright infringement liability won't attach. However, "right and "wrong," and fairness are evaluated based on the "big picture," i.e. the nature of the right that constitutes copyright, rather than from the premise that what the infringer did really isn't that bad.

In the context of the pro bono documentary producers, this would be what is called "a case of first impression," i.e. there is no prior decision to offer guidance (though there is a lot of dicta, i.e. judicial opinion that is non-binding). I have an opinion which way the court would go, but I may be wrong and, either way, it will be very expensive to find out.

True, but IMHO incomplete. Rules per se have no value except to the person who gets to make them serve his own self-interest. A legal system is not only to make sure we have clearly understood rules but also to make sure that the rules we have are the right rules.

The problem with the narrow interpretation of copyright and fair use is the Constitution never anticipated the situation today where one cannot function in the world at large at any time without one's eyes falling on some piece of copyright material or one's ears hearing a copyright piece of music. That means one cannot point a lens or open a microphone in public without some piece of copywrit material intruding. Culture today is virtually defined by copyrighted material, unlike 200 years ago when such material was relatively rare and the majority of man's intellectual activity quickly entered the public domain. As you know, it's only relatively recently in history that copyright on a work was extended to the length of time it exists today. (IMHO, something similar to that of a patent at 16 years from the date of registry would be adequate to protect the artist's right to compensation for his work. Certainly it should not extend past his death even if the rights have been sold to a third party - works should enter the public domain upon the artist's death. While the right to profit from a creation certainly belongs to the creator, the thing of the creation itself ultimately belongs to the culture as a whole. Imagine if the Louvre had to pay a per-head royalty to a corporate owner for every person who views the Mona Lisa or every textbook that prints a copy of it needed permission from DaVinci's heirs!) We are quickly reaching a saturation point where every usable surface is covered with copywrit advertising, for example. The only way for an artist to comply is to insure they completely control the environment, impossible for any filmmaker short of a large studio working in the completely closed and artificial environment of a soundstage.

Don't misunderstand me, I'm not in favour of abandoning copyright and making it open season - far from it. But there needs to be a balance between what is the intentional inclusion of protected materials in order to enhance the value of a new work and the incidental inclusion of protected materials simply because they are such ubiquitous and unavoidable intrusions into modern life.

True, but "right" is always a matter of perspective.

Yes, but . . .

Incidental reproduction doctrine is attempting to grapple with it. Generally, the documentary producer shooting spontaneous news-value footage who inadvertently includes protected expression in a de minimus fashion would not incur liability (and this is NOT legal advice to anyone, just a statement of general principles -- consult a lawyer for any specific application). That is quite different from a film producer who has complete control over the environment that is placed before his or her lens.

Yes, but . . .

These are two different concepts, i.e. the prevelance of copyright-protected material, and the term afforded the copyright owner. I agree that the copyright term has been extended to ridiculous lengths that no longer comport with the stated Constitutional purpose of copyright protection. However, there's only one party to blame and that's Congress. They're the ones who have made the laws.

As regards the prevelance of copyright-protected material, I stand by my paragraph, above. If a film maker has control over what's in front of the lens, he can excluded protected material.

Patents grant an absolute right over use of an idea. Because the protection they afford is so great, the term is limited (and, currently, its 20 years -- up from the prior 17 year term). Copyright, on the other hand, has all sorts of exceptions and, also, must be tempered against the First Amendment interests that it might contravene. Accordingly, because the rights granted aren't absolute, the term is longer.

The intent of copyright (like patent) is an an incentive to creation, i.e. authors should be able to exploit, on an exclusive basis, their works of authorship, thereby encouraging the production of more works of authorship. The interest of someone who devotes their professional life to creating protected expression does so to provide for themselves and their family. Providing for one's family includes providing for them after you die, which is why the term is extended beyond death of the author.

Which is why, unlike with patent, mere use, i.e. reading, viewing, etc., of copyright protected material is not one of the reserved rights.

I'm not sure I follow this one. The Louvre does charge anyone who wants to photograph the Mona Lisa and use it in a textbook or some other fashion that does not constitute personal use. Most museums do. This, however, is a contractual right, not a right of a copyright owner, i.e. a condition of contract for entry into the museum and taking photographs is that you will not use the photograph for any non-commercial purpose.

There is . . . it's called "fair use doctrine" and "incidental reproduction doctrine." However, the courts have always taken the position that a fair use does not necessarily involve using the best means of reproduction, nor does it acknowledge a "difficulty" factor. With respect to a 6-second Simpsons clip playing on a television, as I and others have noted, an easy solution to avoid trespass on an exclusive right is a pinned track matte which either blurs or replaces the protected expression on the television -- if I, an amateur, can do it, it's not all that hard a thing to do.

When, however, there's a compelling First Amendment interest, e.g. a documentary on the balloon fatality at the Thanksgiving Day parade in New York a few years ago, the fact that there are marching bands playing music in the background should (at least in theory) not preclude using a clip of the incident with audio, even though the music is protected by copyright and used without permission.