Fair use copyright law: The Comic Book!

[Robert Knecht Schmidt]

Tales from the Public Domain - BOUND BY LAW? Trapped in a Struggle she
didn't understand by day a filmmaker... by night she fought for fair use!

from the wonks at Duke. With apologies if it's already been posted, and thanks to KJR for posting it elsewhere.

[Paul Tauger]

Sorry folks, I just got around to reading the comic.

It does not accurately set out fair use doctrine in the context of incidental reproduction. Unfortunately, incidental reproduction is unsettled law, and there is no clear case guidance as to what is and is not fair use in this context. The comic makes it appear that any incidental reproduction in a documentary film will automatically be fair use. That is absolutely incorrect. Based on the few decisions that have addressed this question, it is clear that the determination is intensely fact-specific, and involves such things as the amount of material used, the intended use of the documentary, etc. (as well as the usual fair use analysis factors).

Please . . . do not base your decision on whether to include incidentally-reproduced protected expression on what you read in a comic book.

[Jay Gladwell]

Paul, let me get this straight. You're saying, in so many words, that the authors, James Boyle, the William Neal Reynolds Professor of Law at Duke Law School (one of the best laws schools in the country), and Jennifer Jenkins, Director of Duke’s Center for the Study of the Public Domain, don't know what they're talking about?

[Richard Alvarez]

I don't think Paul said that in so many words at all. I think Paul was pointing out the very subtle agenda of the authors. My take on the article is that the authors are urging filmmakers to go ahead and risk the lawsuits. That the only way to fight back, is to simply take the risks, and roll the dice. That's the 'call to action' that I gather was the author's message.

[Paul Tauger]

Originally Posted by Jay Gladwell

Paul, let me get this straight. You're saying, in so many words, that the authors, James Boyle, the William Neal Reynolds Professor of Law at Duke Law School (one of the best laws schools in the country), and Jennifer Jenkins, Director of Duke’s Center for the Study of the Public Domain, don't know what they're talking about?

Nope. I'm saying that the comic book gives the impression that incidental reproduction will, automatically, be deemed fair use. I'm saying it isn't anywhere near as black-and-white as that for the reasons I explained in my post.

Law professors often teach the law as they think it should be. I think incidental reproduction should be fair use, too. However, there is conflicting case law on this and none of it is at the appellate level, so it's merely persuasive and non-binding. Unlike law professors (and, by the way, Duke Law School is not "one of the best law schools in the country," but that's irrelevant -- it's a perfectly good school), I have to litigate these issues to judges and to appellate panels. Neither my opinion, nor the opinion of these law professors (who, by the way, are not authors of any major copyright treatises, i.e. their last name isn't "Nimmer") is going to have anything but persuasive value in that context. I have no idea of what the Center for the Study of the Public Domain is supposed to be, but incidental reproduction and fair use doctrine have absolutely nothing to do with public domain.

With all that said, I don't give legal advice to non-clients and no one here on dvinfo.net are my clients. Feel free to be guided by a comic book, if that's what you prefer.

[Steve House]

Originally Posted by Paul Tauger

...
With all that said, I don't give legal advice to non-clients and no one here on dvinfo.net are my clients. Feel free to be guided by a comic book, if that's what you prefer.

I hope you don't mind the question but I've seen this statement or words to its effect many times on various attorney's posts and it has always piqued my curiosity as to the reasons behind it. Aside from the obvious (and perfectly reasonable) desire not to "give away the store" since providing legal information is how an attorney earns his living, is there a reason why he is compelled to only offer situation specific information or opinions to persons in an offical attorney/client relationship? If you ask a doctor friend for advice on the best way to treat an ailment he's liable to answer freely ... why not an attorney?

[Paul Tauger]

Originally Posted by Steve House

I hope you don't mind the question

I don't mind any question. ;)

but I've seen this statement or words to its effect many times on various attorneys posts and it has always piqued my curiosity as to the reasons behind it. Aside from the obvious (and perfectly reasonable) desire not to "give away the store" since providing legal information is how an attorney earns his living, is there a reason why he is compelled to only offer situation specific information or opinions to persons in an offical attorney/client relationship? If you ask a doctor friend the best way to treat an ailment he's liable to answer freely ... why not an attorney?

Actually, your doctor friend probably won't answer freely, either. There are a few reasons why I can't give advice to non-clients:

1. It would create an attorney/client relationship, as a matter of law. I would have all the obligations of an attorney to a client, including the obligation to finish the representation absent a legally-cognizable ground not to; attorneys are not allowed to dump clients without cause if it results in prejudice to the client. In other words, I could be stuck representing you, for free, until the particular issue is resolved.

2. I would incur potential liability for malpractice. If you took my advice and then decided it was bad, you could sue me.

3. No one, without exception, ever provides enough information in a post to an internet website like dvinfo.net for me to provide an informed opinion. The law is just awash with niche doctrines and exceptions (see, e.g., "incidental reproduction"). Before I give an opinion to a client, I spend a fair amount of time asking questions so that I can discover all the relevant factual bases. Then, unless it's something very straightforward, I will do research, sometimes a lot, to determine how the facts are likely to be construed as against the law. Then I will provide an opinion that includes evaluation of relative risks, recommendations as to courses of action, and estimates as to cost. Obviously, I can't do anything like that here, but anything less could easily constitute malpractice.

4. I can't take on representations that may be adverse to my or my firm's clients, either with respect to a specific matter or with respect to matters that could result in my having to advocate for a construction of law that is contrary to my clients' interests (the former is a legal requirement, the latter a business one). For example, I represent a number of video game developers. They would be most unhappy if I were to give advice about how to get around copyright restrictions so that their products could be used in someone's video. Moreover, if they decided to sue someone for this, and I had given advice to that person, I would be precluded from handling the matter for my existing client due to conflict of interest. That would make me, my firm and my client most unhappy. Before I accept a representation, I always run a conflicts check -- it's a firm requirement and a requirement of our malpractice carrier.

5. California, where I am an licensed, requires certain written disclosures be made on undertaking any legal representation.

6. My retainer agreements contain a number of provisions that ensure, for example, that I can discontinue the representation if you don't pay me the agreed fee, don't cooperate with me, etc. They also provide for other things, e.g., if I have to travel on your behalf, you're going to buy me fully-refundable, unrestricted tickets in coach class for domestic travel and in business or first for international travel, etc., that you'll pay a late fee for missed payments, etc.

7. My contractual arrangement with my firm is that I only practice law on its behalf. When I refer to "my clients" they are, from a contractual perspective, firm clients, i.e. they can hold the firm liable if I should commit malpractice, etc. My contract with my firm prohibits me from practicing law for any but firm clients without specific permission.

8. For all of the above reasons, our malpractice carrier prohibits our providing legal advice to non-clients.

9. For all of the above reasons, my firm prohibits me from providing legal advice to non-clients.

Doctors, accountants, investment counselors and other professionals who stand in the position of fiduciary to their clients have similar concerns.

[Paul Tauger]

Originally Posted by Richard Alvarez

I don't think Paul said that in so many words at all. I think Paul was pointing out the very subtle agenda of the authors. My take on the article is that the authors are urging filmmakers to go ahead and risk the lawsuits. That the only way to fight back, is to simply take the risks, and roll the dice. That's the 'call to action' that I gather was the author's message.

Richard, you're right on the money. The comic book advocates for a specific construction of fair use doctrine (which is an equitable doctrine committed to the sole discretion of the court, meaning the judge gets to decide on a case-by-case basis and will be overruled on appeal only if it can be shown that he abused his discretion -- a very, very high standard to establish). The position so advocated is one I happen to agree with, i.e. I think, for example, that wedding videographers shouldn't have to be concerned with incidental reproduction of music when they shoot the bride's dance with her father. It is not, however, established as settled law. Quite the contrary, the decisional authority on this issue is rather confusing.

[Richard Alvarez]

Overall, I found the comic book fairly usefull. It has some good information regarding the law, and some usefull cites of cases to illustrate the basic points. I also happen to believe that incidental use should not be so hazardous in today's filmmaking world.

But I did find the overall tone to be a bit... disengenuous? It really hit me on page 21 of the comic.

Basically, the comic's premise is that 'its dangerous to be a documentary filmmaker, because you could get sued for using copywritten material... (yup, no argument there)... it's expensive to fight these suits... (yup, the big guys have more money).... and therefore the way to 'change the culture' is for independent filmmakers to just step up and risk it.'

Excuse me? I'm not sure that's a very productive strategy.

As ATTORNEY's they are certainly free to advocate their take on how the law should be interpreted. As ARTISTS who understand better than most, the VALUE and RISKS of copyright, they are in a unique position to advocate a 'change in the culture'. But I think they might have a more effective strategy if they were willing to represent all those people who roll the dice, take the risk, or in their words 'not be so afraid'... by offering to represent them all pro-bono. This would allow those starving filmmkakers the kind of freedom that big studios have... the freedom to fight it out in court.

The Comic points out indirectly, that it USED to be much easier to make documentaries... people were less likely to sue 'back then'. They also make the point that we are in a NEW era, of 'democratic' filmmaking, where the tools and technology put the power of filmmaking in everyone's hands. Yep, that's certainly true. BUT they fail to point out that these two statements are an illustration of cause and effect.

"Back in the day" it was EXPENSIVE to make movies, and few people did it. There was little risk of having your work stolen because it was too difficult and too expensive for someone to 'steal' it. Who would undertake the risk, if they were spending so much time and money making a film? (Indeed, this is why E&0 insurance is part of any major budget). NOWADAYS it's incredibly easy to steal/appropriate/borrow/sample/.duplicate someone's work and have it seen by MILLIONS... thereby more easily diluting the commercial value of the work 'sampled'. The increase in litigation and tightening of laws is a direct response to the technology. That's not a judgement... just an observation.

As a parrallel, consider how many times our 100 dollar bill has been redisigned in the last decade - with the advent of computer graphics/copy/printing techniques. How often has the one dollar bill been redesigned? If it's relatively cheap, no one will fight to protect it. IF it's relatively expensive then the likelihood of a fight goes up.

Like Paul, I think incidental reproduction should be allowed on a more liberal basis than it is. But for the moment, it is a case-by-case determination, and the authors exhortation for filmmakers to push the envelope struck me as a bit cavalier. Everyone is free to give away their rights as they see fit. They are also free to protect their rights as strongly as the law allows.

[Chris Hurd]

Originally Posted by Paul Tauger

There are a few reasons why I can't give advice to non-clients:

Paul, thanks for taking the time to craft that post. It's very much appreciated.

[Steve House]

Originally Posted by Paul Tauger

Richard, you're right on the money. The comic book advocates for a specific construction of fair use doctrine (which is an equitable doctrine committed to the sole discretion of the court, meaning the judge gets to decide on a case-by-case basis and will be overruled on appeal only if it can be shown that he abused his discretion -- a very, very high standard to establish). The position so advocated is one I happen to agree with, i.e. I think, for example, that wedding videographers shouldn't have to be concerned with incidental reproduction of music when they shoot the bride's dance with her father. It is not, however, established as settled law. Quite the contrary, the decisional authority on this issue is rather confusing.

I'm reminded of the line from "Lion In Winter" where King Henry describes justice as two peasants arguing before the crown over the value of a cow. I kind of wish the courts were like that, a "justice system" rather than a "legal system."

[Paul Tauger]

Originally Posted by Steve House

I'm reminded of the line from "Lion In Winter" where King Henry describes justice as two peasants arguing before the crown over the value of a cow. I kind of wish the courts were like that, a "justice system" rather than a "legal system."

We have a justice system. The problem is, the crown isn't accessible to us peasants. The biggest flaw in the U.S. system is one of access: individuals and small-business owners can't afford the entrance fee and, as a result, can't get justice.

[Steve House]

Originally Posted by Richard Alvarez

...
The Comic points out indirectly, that it USED to be much easier to make documentaries... people were less likely to sue 'back then'. They also make the point that we are in a NEW era, of 'democratic' filmmaking, where the tools and technology put the power of filmmaking in everyone's hands. Yep, that's certainly true. BUT they fail to point out that these two statements are an illustration of cause and effect.

"....

But don't you think that commercial interests are becoming more and more restrictive as well. "Back in the day" a toy manufacturer would likely have been tickled pink for the fans of a doll to set up fan clubs and web sites promoiting the product. Now Mattel is so worried about dilution of their tradmarks that they go against Barbie fan sites, etc, with a vengance. I think that sort of "ultra-proprietarianism" (to coin a phrase) is a material change in the legal and business climate over the last 50 years or so. It's not the democritization of filmaking, I don't think, because if that was the case filmakers would have gotten sued just as quickly in the 40's, 50's, and 60's as they do today - there would have been fewer suits because there were fewer filmmakers but those who were making film would have had just as much to worry about as we do today. Yet that apparently wasn't the case.

I think business in general is holding its cards much closer to the chest today than they used to. We have become a much more closed society even as access to the means of communication have become more open.

[Richard Alvarez]

Steve I think you missed my point. There were no websites 'back in the day'. Fan clubs, yes... and there are fan clubs now. But the restrictive laws an measures are a direct outgrowth of the new technology allowing BROAD copying and dissemination of duplicated materials.

(And though there are overlapping issues with Trademark and Copyright, they are distinct laws.)

You are asserting that the ratio of lawsuits was lower 'back in the day'. I say we see more lawsuits because it's easier to infringe and harder to protect. I also think that because the pool of 'infringers' has increased exponnentially, the pool of people who are interested in the law has also increased. You assert that we see more lawsuits because people care more about their workproduct now than they did fifty years ago.

I also think that as we have now moved into the 'information age'... that information has become the single most valuable commodity in the modern American economy. Content creation, manipulation, branding, sales, licensing is a VERY big money maker -And everybody wants in on it.

There are basically two sides to the copyright issue. "How do I keep people from using my material without my permission?" and "How can I use somone elses material without their permission?" Those are really the two questions that come up on this board over and over and over again. "How can I keep the guy who hired me from using the footage I shot, if he didn't pay me?" "How can I sue the guy who ripped off my wedding fooage for his webpage?" "How can I use this rock bands music without asking?" Over and over, the same two questions. The comic book points out, though not as clearly as Paul does... that it's up to the JUDGE to decide, usually on a case by case basis... the boundaries of 'fair use'.

As to "JUSTICE" - I always felt that the legal system was just a system for setlling disputes... short of bloodshed. That 'justice is a decision in YOUR favor'. One side is almost certainly going to feel that justice was not served.

[Steve House]

Originally Posted by Richard Alvarez

.... You assert that we see more lawsuits because people care more about their workproduct now than they did fifty years ago.

I ....
As to "JUSTICE" - I always felt that the legal system was just a system for setlling disputes... short of bloodshed. That 'justice is a decision in YOUR favor'. One side is almost certainly going to feel that justice was not served.

Actually I don't think they care more about their product now than they did - in fact I think it's quite the opposite. I think businesses today don't really give a damn about their product except as a means to the bottom line. The intrinsic qualities and merits of the product itself are irrelevant except as marketing devices. And lawsuits have become just another line item either contributing to shareholder equity or considered just another part of the cost of doing business, depending on whether you're winning or losing.

I also disagree with 'justice' as being perceived as a decision in your favour. I believe that in most cases one party is knowingly doing the wrong thing and have found themselves in court because they are trying to get away with it. Whether that is the plaintif or the defendent (or both) is dependent of the circumstances but I don't believe that the typical case is of two parties who each truly believe their hands are clean. At least one of the parties is a sleeze who just doesn't care that he is. Otherwise once the facts were clearly outlined the parties would have understood each others point of view and reached an amiable solution to the conflict.