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Home :: Archive :: 2006 :: September ::
Movie Stills
The Shakespeare Conference: SHK 17.0804  Monday, 18 September 2006

[1] 	From: 	Gabriel Egan <
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 	Date: 	Friday, 15 Sep 2006 15:37:00 +0100
 	Subj: 	Re: SHK 17.0796 Movie Stills

[2] 	From: 	William L Davis <
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 	Date: 	Friday, 15 Sep 2006 11:35:58 -0400
 	Subj: 	Re: SHK 17.0782 Movie Stills

[3] 	From: 	Larry Weiss <
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 	Date: 	Friday, 15 Sep 2006 17:50:16 -0400
 	Subj: 	Re: SHK 17.0796 Movie Stills

[4] 	From: 	Tom Krause <
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 	Date: 	Saturday, 16 Sep 2006 07:52:53 -0400
 	Subj: 	Re: SHK 17.0796 Movie Stills

[5] 	From: 	Larry Weiss <
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 	Date: 	Saturday, 16 Sep 2006 20:55:32 -0400
 	Subj: 	Movie Stills


[1]-----------------------------------------------------------------
From: 		Gabriel Egan <
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Date: 		Friday, 15 Sep 2006 15:37:00 +0100
Subject: 17.0796 Movie Stills
Comment: 	Re: SHK 17.0796 Movie Stills

The negative responses to my arguments about theft and copyright overlook 
the fact that defining the original combination of sounds, or words, or 
pictures as property is a relative recent, and datable, socio-political 
event. The definition runs counter to our ordinary sense of what 
constitutes property.

So peculiar is this notion of 'intellectual property' that various 
jurisdictions have at different times put different limits on its 
expiration. Such concerns to limit copyright reveal that this is not a 
form a property like the ones we're used to from everyday interaction with 
objects.

It's pleasing to be alive at a time when notions of property are being 
forcibly altered by the developing forces of reproduction, for this 
illustrates a central Marxist principle about the relation of law to 
power. William Davis thinks I've embarrassed myself by revealing the 
distance between my views and reality.  An unbiased observer of what is 
actually happening with the peer-to-peer circulation of music and film 
over the Internet would, I hope, see that those who spout the old legal 
platitudes about the nature of copyright and property are simply trying to 
talk back into the bottle a genie that is out for good.

I don't normally do this, but in case anyone wants to hear an argument for 
the wider social good that has been generated by the actions of people who 
were at the time denounced as copyright thieves, I made the case in a 
paper for a conference at the University of Newcastle (UK) last year and 
the full text is on my website at

http://www.gabrielegan.com/publications/Egan2005i.htm

Since I can't pretend there's a close connection to matters Shakespearian 
in all this, I'll desist from further postings on the subject.

Gabriel Egan

[2]-------------------------------------------------------------
From: 		William L Davis <
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Date: 		Friday, 15 Sep 2006 11:35:58 -0400
Subject: 17.0782 Movie Stills
Comment: 	Re: SHK 17.0782 Movie Stills

Shortly after sending Hardy my most recent response, I decided against 
having it publicly posted and was in the process of sending an email to 
Hardy to ask him to refrain from including my reply on the list.  However, 
just as I was finishing the request, an email from one of the readers 
arrived in my email box which clearly indicated the posting had already 
gone out to the list.  This is something I regret because I would have 
rather presented a more cogent explanation of how the law actually works 
in these matters.  But what the reader said made me even more concerned.

According to this reader, my reference to Gabriel Egan as a "stellar 
academic scholar" was interpreted as hyperbole, said tongue in cheek as an 
insult.  It was not.  Gabriel and I clearly disagree on this issue, but my 
comment was intended to express my surprise at the contradiction I saw 
between his intellect and his position on copyright and intellectual 
property law.  From my perspective, they do not match.  My comment was 
intended to point out that disparity, but not to insult his scholarship. 
I regret that my words were misinterpreted this way, and I am writing this 
note to offer a public apology to Gabriel for it.  Even though we disagree 
on these issues, it was never my intent to steer the discussion into a 
direction that would be inappropriate.

Regards,
William

[3]-------------------------------------------------------------
From: 		Larry Weiss <
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Date: 		Friday, 15 Sep 2006 17:50:16 -0400
Subject: 17.0796 Movie Stills
Comment: 	Re: SHK 17.0796 Movie Stills

Jeffrey Jordan's otherwise admirable post says it is "replying to" me when 
he quotes the following passage

>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, ...
>>(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 says that

>The use of a few movie stills certainly falls under #3, and is fair use.

He is not replying to anything I said.  He is quoting the statute and 
expressing the opinion that certain conduct would be held by a court to be 
fair use.  I am not certain he is right, but that is what courts are for.

One thing that must be considered is whether the work being copied is the 
movie or a photograph having a separate copyright.  I am not sure that all 
movie still were blowups of frames from the film; I believe that some were 
separately commissioned from photographers who, of course, own their own 
copyrights in their creations.  Even if a still is a blowup of a frame, an 
argument might be made that there is enough independent creativity in the 
process to justify treating the still as a separate work.  Making 
assumptions of the character reflected by Jeffrey's analysis often gets 
good people into bad trouble.

[4]-------------------------------------------------------------
From: 		Tom Krause <
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Date: 		Saturday, 16 Sep 2006 07:52:53 -0400
Subject: 17.0796 Movie Stills
Comment: 	Re: SHK 17.0796 Movie Stills

Professor Egan certainly has a knack for inspiring his critics to take 
untenable positions.  At this point, we don't have nearly enough 
information to decide the strength of the fair use case of the original 
poster, yet the critics are demanding licensing revenues, threatening 
statutory and enhanced damages, and predicting awards of attorneys' fees. 
And worst of all, equating copyright infringement with theft.

Copyright infringement is not theft, not even under the Berne Convention. 
While it is common and perhaps forgivable to equate the two concepts when 
speaking to schoolchildren, doing so stretches the definition of "theft" 
beyond its breaking point, and doing so here insults the intelligence of 
the members of this list.  See Dowling v. United States, 473 U.S. 207, 217 
("[I]nterference with copyright does not easily equate with theft . . . . 
The infringer invades a statutorily defined province guaranteed to the 
copyright holder alone. But he does not assume physical control over 
copyright; nor does he wholly deprive its owner of its use.").  The 
reasoning of Dowling is accepted and understood by copyright attorneys 
everywhere, despite the positions they sometimes take in public fora.

I'll leave it at that for now; if anyone is seriously going to defend the 
equation as anything other than a second-rate analogy (i.e. copyright 
infringement is bad and doing it can get you into trouble, just like 
theft), please do so with reference to the differences between criminal 
and civil law, the elements of each crime/tort, the availability of any 
defenses, and the remedies/penalties for each offense.  If you can prove 
that (1) there is an analogy to "fair use" in the law of theft, and (2) 
that each time a copyrighted work is copied without permission, the 
copyright owner loses a sale, that would be nice too.

Tom Krause

[5]-------------------------------------------------------------
From: 		Larry Weiss <
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Date: 		Saturday, 16 Sep 2006 20:55:32 -0400
Subject: 	Movie Stills

A client of mine who owns a well-known photographic stock house provides 
the following information, which I think those who have been following 
this thread will find of interest:

"Beginning with the talkies, motion picture cameras filming at the 
standard 24 frames per second usually have been exposed for about 1/50th 
of a second. This slow shutter speed creates the blur that makes the 
motion look continuous when projected. And so a still made from a motion 
picture film frame will usually be blurry except when the scene is wholly 
static.

"This is why movie publicity stills made at the time of the original 
filmings were never taken from film footage but were usually works for 
hire taken by still photographers, invariably anonymous, in the pay of the 
film producers. If you look carefully at the interminable credits at the 
end of present-day films you will now see the still photographer credited 
by name just before the first aid giver and the sandwich maker.

"Back in the silent days, publicity stills were taken with 8x10 cameras 
and I have some original stills from Chaplin films so sharp that the pores 
in his skin can be seen, far from the case with modern stills taken with 
35mm cameras. But I also have blurry stills from Chaplin films made long 
after from the motion picture film frames.

"To the best of my knowledge, except for Disney no film producer 
copyrighted publicity stills during the entirety of the 1909 Act. They 
were, after all, made in the hope and expectation that they would be 
widely reproduced to publicize the films."

  As the current act (the Copyright Act of 1976, effective January 1, 1979) 
no longer makes registration the essential condition for the creation of 
copyright protection, stills made after January 1, 1979, would be the 
copyright property of the photographer or, more likely, the producer if 
they qualify as works for hire.


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