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Home :: Archive :: 2006 :: September ::
Movie Stills
The Shakespeare Conference: SHK 17.0840  Friday, 22 September 2006

[1] 	From: 	Larry Weiss <
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	Date: 	Thursday, 21 Sep 2006 14:45:29 -0400
	Subj: 	Re: SHK 17.0830 Movie Stills

[2] 	From: 	John Briggs <
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	Date: 	Thursday, 21 Sep 2006 20:12:03 +0100
	Subj: 	Re: SHK 17.0830 Movie Stills

[3] 	From: 	Tom Krause <
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	Date: 	Friday, 22 Sep 2006 09:22:09 -0400
	Subj: 	Re: SHK 17.0830 Movie Stills


[1]-----------------------------------------------------------------
From: 		Larry Weiss <
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Date: 		Thursday, 21 Sep 2006 14:45:29 -0400
Subject: 17.0830 Movie Stills
Comment: 	Re: SHK 17.0830 Movie Stills

 >I'd hope it was obvious I was not implying "fair use" in,
 >for example, the use of stills in a defamation campaign
 >against the movie maker.

Actually, this might support a fair use defense if the "defamation" is a 
comment on the quality of the movie.  In Campbell v. Acuff-Rose Music, 
Inc., 510 US 569 (1994), the Supreme Court held that the fair use 
defense is available to allow a work to be parodied.

 >Innocent fair use is going to be a virtually automatic defense
 >where a few Shakespeare movie stills appear in a S. presentation.
 >The plaintiff would have to overcome that.  When the stills
 >are reasonably few in number, offer no competition for movie
 >revenue, and so on, the plaintiff is going to find his position 
untenable.

The burden of proof is on the defendant; there is no "presumption" of 
fair use.  And, since the stills have their own copyrights independent 
of the movie's protection, it is the market for the stills, not the 
film, which must be considered.  A lot will depend on the prominence of 
the use of the stills -- are they just decorating the back wall, or are 
they blown up and projected?

All of this reminds me of the ditty I have quoted here before, sung at 
celebrations in the Inns of Court:

On this festive occasion our spirit unbends
Let us never forget the profession's best friend
So we'll send the wine round
And a nice bumper fill
To the jolly testator who makes his own will

[2]-------------------------------------------------------------
From: 		John Briggs <
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Date: 		Thursday, 21 Sep 2006 20:12:03 +0100
Subject: 17.0830 Movie Stills
Comment: 	Re: SHK 17.0830 Movie Stills

Larry Weiss wrote:

 >Now here is a hypothetical case for you all to ponder:  A theoretical
 >physicist spent twenty years working out a knotty problem in quantum
 >field theory.  Finally he hits on a brilliant and elegant solution
 >which he summarizes in a 50-word abstract supported by a two-hundred
 >page article filled with complex equations proving his solution.  May
 >another professor copy the abstract and distribute it to his classes
 >without first obtaining permission?

Well, in Britain I can refer people to the Copyright, Designs and 
Patents Act 1988, section 60:

Abstracts of scientific or technical articles

(1) Where an article on a scientific or technical subject is published 
in a periodical accompanied by an abstract indicating the contents of 
the article, it is not an infringement of copyright in the abstract, or 
in the article, to copy the abstract or issue copies of it to the public.

(2) This section does not apply if or to the extent that there is a 
licensing scheme certified for the purposes of this section under 
section 143 providing for the grant of licences.

John Briggs

[3]-------------------------------------------------------------
From: 		Tom Krause <
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Date: 		Friday, 22 Sep 2006 09:22:09 -0400
Subject: 17.0830 Movie Stills
Comment: 	Re: SHK 17.0830 Movie Stills

Maybe I wasn't clear:  I wasn't issuing a challenge, and I'm not taking 
a position on whether the proposed (unspecified) use of movie stills is 
fair use.  All I'm trying to do is correct an inappropriate blanket 
equation of two very different concepts.  Again, "thief" involves a 
moral judgment; almost an on-off switch:  if you steal for personal 
gain, I condemn you.  If you infringe a copyright, even for personal 
gain, I can't be sure that I condemn you, without knowing more facts. 
Calling all copyright infringers "thieves" is wrong, and I'm glad that 
everyone (except perhaps Jeffrey Jordan) has stopped doing it.

Larry Weiss's response, though generally unobjectionable (I don't 
disagree that in some cases, copyright infringement resembles theft in 
terms of economic effect and the relationship between victim and 
perpetrator), requires correction on a few small  points.

He writes:  "The most valuable property we own is intangible:  bank 
accounts and other debts, interests in business ventures, licenses to 
practice professions or trades, etc."

The fact that copyrights are "intangible" is not what distinguishes them 
from other kinds of property.  What distinguishes copyright is the fact 
that the use of the copyrighted work is nonrivalrous.  It is only the 
assumption that *every* unauthorized use of a copyrighted work causes a 
"lost sale" that allows Larry to compare bank accounts and apartment 
buildings with copyright rights.  But the assumption is wrong; there are 
many instances of copyright infringement (e.g. satire) that do not cause 
any economic harm to the copyright holder.

" . . . does not an infringer "steal" the author's work, inspiration, 
research, talent and time if he publishes the lectures without 
compensating the author?"

This is an example where copyright infringement can be said to 
"resemble" theft, especially where the infringing sales supplant sales 
that could have been made by the author.  But creating a satire of the 
work (as opposed to a parody, which is protected by fair use), is not 
"theft."  It's copyright infringement, and there's no other word for it. 
  By the way, it's not the author's "inspiration, research, talent and 
time" that's being appropriated, it's just his expression (which may 
represent only a small subset of his inspiration, talent and time, and 
probably none of his research). .

Larry provides a hypothetical:

"A theoretical physicist spent twenty years working out a knotty problem 
in quantum field theory.  Finally he hits on a brilliant and elegant 
solution which he summarizes in a 50-word abstract supported by a 
two-hundred page article filled with complex equations proving his 
solution.  May another professor copy the abstract and distribute it to 
his classes without first obtaining permission?"

The answer is almost certainly no, but the hypothetical seems to betray 
some confusion about the purpose of copyright.  Copyright is not meant 
to reward the twenty years of work that the physicist spent developing 
the theory (or, for that matter, all of the "inspiration, research, 
talent and time" from the previous example).  It protects only the 
*expression* in the physicist's abstract; i.e. the physicist's choice of 
words to describe the theory.  If the second professor takes 20 minutes 
to rewrite the abstract in his own words, then he can distribute it to 
his class, publish it on the Internet, or write a book about it (as long 
as he doesn't copy the expression from the physicist's article).  The 
first professor needs to look to patent law or (more likely in this 
case) the Nobel Committee to obtain reward for his labor.

Jeffrey Jordan writes: "I don't think that insisting, to the public in 
general, that copyright infringement is absolutely not theft, is helpful 
to the rule of law. . . . The average person who hears the assertion 
"copyright infringement is NOT theft!" is going to think it's all right."

Again, the readers of this list are sophisticated enough to appreciate 
the distinctions I've explained.

He continues:  "The use of "theft" or "stealing" in reference to 
copyright infringement is wise usage . . . ."

No it isn't; it's sloppy, misleading, and unnecessary.

Jeffrey Jordan goes on:  "Any purpose" is not correct to my view, or to 
what I wrote . . . .  "One should refrain from trying to argue as a 
judge unless one is one."

Talk about quibbling!  You refuse to answer my earlier question (which - 
paraphrased to remove the inaccuracy you point out - was whether if your 
advice re fair use turned out to be wrong, you'd condemn the person who 
followed your advice as a thief), on the basis of the aforesaid 
inaccuracy and the odd admonition that  "One should refrain from trying 
to argue as a judge unless one is one."

First, I wasn't "arguing as a judge," I was pointing out an internal 
inconsistency in your logic - that the vast and murky grey area between 
fair use and infringement is precisely what makes it wrong to equate 
copyright infringement with "theft."  And second (not that it matters), 
the only thing that might prevent me from "arguing as a judge" is that I 
know too much about copyright law - all I'd have to do is forget a few 
things!

"Also, innocence is presumed."

And this, of course, is a reason one should refrain from trying to argue 
as a lawyer unless one is one.

n.b.  The complete cite for the article I cited in my last post is 
Mohsen Manesh, The Immorality of Theft, the Amorality of Infringement, 
2006 Stan. Tech. L. Rev. 5 
(http://stlr.stanford.edu/STLR/Articles/06_STLR_5/Manesh-immorality.pdf). 
  Also, for anyone who's interested in a treatment of some of these 
issues in comic book form, see "Tales from the Public Domain: BOUND BY 
LAW?," available at http://www.law.duke.edu/cspd/comics/.

Tom Krause

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