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Home :: Archive :: 2006 :: September ::
Movie Stills
The Shakespeare Conference: SHK 17.0791  Thursday, 14 September 2006

[1] 	From: 	Larry Weiss <
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	Date: 	Tuesday, 12 Sep 2006 16:19:04 -0400
	Subj: 	Re: SHK 17.0782 Movie Stills

[2] 	From: 	Gabriel Egan <
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	Date: 	Tuesday, 12 Sep 2006 23:48:34 +0100
	Subj: 	Re: SHK 17.0782 Movie Stills


[1]-----------------------------------------------------------------
From: 		Larry Weiss <
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Date: 		Tuesday, 12 Sep 2006 16:19:04 -0400
Subject: 17.0782 Movie Stills
Comment: 	Re: SHK 17.0782 Movie Stills

I wholeheartedly endorse what William Davis has to say.  I too have 
successfully asserted claims against institutions who copied my client's 
creations to use for "educational purposes" in the expectation that (1) 
we wouldn't do anything anyway; (2) if we did, they could say "fair use" 
and we would go away; or, if not, (3) we wouldn't get enough from them 
to hurt.

The biggest fallacy in this is that it ignores the "gotcha" premium.  If 
you ask permission the worst that will befall you is a modest license 
fee.  But use it without permission and we will demand that you 
immediately (A) cease all use, (B) turn over all undistributed copies 
(as well as plates, molds, etc.)  and (C) pay a substantially larger 
amount in damages than we would have charged for permission.  If you 
refuse, you will be sued in federal court, and then (D) you will also be 
liable for my fees and litigation costs; (E) you will have to pay your 
own lawyer; (F) your insistence on continuing to distribute the 
infringement after being told that it is unauthorized will be used as 
proof of willfulness to justify a substantial add-on to the statutory 
damages we can demand.  If you are well advised, you will undoubtedly 
see the wisdom of paying enough to make it worthwhile for us to have 
pursued the claim.  That will usually be a multiple of the modest 
license fee we would have charged if you had asked for permission -- GOTCHA!

I am sure, though, that there will still be those who will continue to 
believe that if a work is copied "for educational purposes" it is 
protected fair use.  Here is what the U.S. statute has to say about that 
(17 USC sec 107):

In determining whether the use made of a work in any particular case is 
a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is 
of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the 
copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the 
copyrighted work.

Note that only "nonprofit" educational purpose is mentioned.  Note 
especially that this is only an example in one of the four enumerated 
factors (and that the specified factors are not necessarily exhaustive 
-- observe the word "include").  "Educational purposes" is only the 
beginning of the inquiry, it is not the answer.

[2]-------------------------------------------------------------
From: 		Gabriel Egan <
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Date: 		Tuesday, 12 Sep 2006 23:48:34 +0100
Subject: 17.0782 Movie Stills
Comment: 	Re: SHK 17.0782 Movie Stills

William Davis gives the standard official argument against what is 
laughably called 'copyright theft':

 >If I walk into a candy store and the clerk
 >is in the backroom, I could probably take
 >a handful of candy, never pay for it, and
 >get away with it. And even if I got caught,
 >I probably wouldn't get into much trouble.
 >So why not do it?

There is no valid analogy here, as anyone trained in law (or just anyone 
who reflects upon it) ought to spot quite easily. Taking the candy is 
theft because it permanently denies the store-keeper the benefits of 
possessing the candy. Taking a copy of my friend's DVD does not deny my 
friend the benefits of owning the DVD. That's why it isn't theft and why 
no-one should be ashamed of it.

Pressed to give instances of the disasters that befall those who take my 
free legal advice rather than pay for the advice of the firm of 'Dewey, 
Cheetham, and Howe', William Davis promises to "share a few of my own 
recent experiences briefly". What follows, though (if you'll care to 
look over his posting again), is one case of an eejit paying his firm to 
ask for a website to be altered (could have done that herself), one 
hypothetical case of 'what if a publisher did what Egan advises?' 
(irrelevant, m'lud, we weren't discussing publishers but educators), and 
one quite obscene example of the firm bullying some musicians into not 
playing a song because the copyright holder didn't like the arrangement.

I wonder if Davis's firm would like to sue my niece, whose rendition of 
the well-known (and legally protected) 'Happy Birthday to You' is, 
frankly, unlistenable. If you'd all please rise, I've asked the organist 
to start us all off in my new setting of the anthem "We will nothing pay 
for wearing our own noses" (Cymbeline 3.1.13-14).

Gabriel Egan

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