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Home :: Archive :: 2006 :: September ::
Movie Stills
The Shakespeare Conference: SHK 17.0847  Tuesday, 26 September 2006

[Editor's Note: Anyone wishing to continue this discussion should do so 
privately; I will no longer be posting on this subject to the 
membership. Nevertheless, I do hope that the next time someone threatens 
to sue me about something that appeared on this list that one or more of 
the lawyers who are SHAKSPER members will come to my defense. -HMC]

[1] 	From: 	Larry Weiss <
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	Date: 	Friday, 22 Sep 2006 22:17:33 -0400
	Subj: 	Re: SHK 17.0840 Movie Stills

[2] 	From: 	Jeffrey Jordan <
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	Date: 	Friday, 22 Sep 2006 22:12:38 -0500
	Subj: 	Re: SHK 17.0840 Movie Stills

[3] 	From: 	Robert Projansky <
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	Date: 	Saturday, 23 Sep 2006 06:54:09 -0700
	Subj: 	Re: SHK 17.0840 Movie Stills


[1]-----------------------------------------------------------------
From: 		Larry Weiss <
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Date: 		Friday, 22 Sep 2006 22:17:33 -0400
Subject: 17.0840 Movie Stills
Comment: 	Re: SHK 17.0840 Movie Stills

Maybe now I can mark "quietus" to this non-Shakespearean dialogue, fun 
though it has been.

I agree with Tom Krause.  I never said that "every" unauthorized use is 
equitable to theft.  In fact, as we are discussing fair use (which is 
expressly permitted by the statute), it is demonstrably so that every 
unauthorized use is not theft.  There is still a small purely semantic 
quibble:  An unauthorized use that is permissible is not an 
infringement; so it might still be argued that all "infringements" are 
equatable to theft.  But that is too nice, and I am not making that point.

I am a little uncertain about the distinction Tom makes between parody 
and satire.  Perhaps he is using these words as shorthands for the kind 
of works at issue in the "Pretty Woman" case (Campbell v Acuff-Rose) and 
what was done in the Dr. Seuss case.  In the former case the Court held 
that 2 Live Crew's song parodied the Roy Orbison song in a way that 
commented on its sentimentality.  In the Dr. Seuss case the defendant 
made use of Geisel's style to create a poem of his own which said 
nothing about the quality of Geisel's works.  I don't recall that the 
court called that "satire," but perhaps that is what Tom has in mind. 
(By the way, I have difficulty with decisions that rely on the express 
or implied notion that a writer's style is protectable, precisely for 
the reason Tom notes -- copying a style does not affect the market for 
the genuine works.)

As for my hypothetical, it was a trick question.  Copyright law does not 
protect ideas, it protects only the expression of ideas.  A brief 
abstract -- no, I am not quoting Hamlet -- contains very little if any 
protectable expression, it is almost all idea.  I will wager a small sum 
that the U.K. statute John Briggs cites was a reaction to a decision 
that got it wrong.

[2]-------------------------------------------------------------
From: 		Jeffrey Jordan <
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 >
Date: 		Friday, 22 Sep 2006 22:12:38 -0500
Subject: 17.0840 Movie Stills
Comment: 	Re: SHK 17.0840 Movie Stills

Replying to Larry Weiss.

 >The burden of proof is on the defendant;
 >there is no "presumption" of fair use.

Right, for a civil case it's going to be preponderance of the evidence.

 >And, since the stills have their own copyrights...

But do they? Two kinds of stills have been discussed, those taken 
especially for the purpose by a photographer, and those taken directly 
from a DVD of the movie.  The latter won't have their own copyright, 
apart from the movie.

Replying to Tom Krause.

 > Calling all copyright infringers "thieves" is wrong...

Actually, it isn't, in general discussion.  The concept of thievery is 
not applied so narrowly in general use.  When a football coach exclaims, 
"The officials stole the game from us! - those lousy thieves!" he is not 
making a legal error.

The misunderstanding may arise from some notion that the original use of 
"theft" or "stealing" in the thread was intended at that point to offer 
a legal definition.  It was not, it was general English.  There was 
nothing wrong with the usage then, and there's nothing wrong with it 
now.  Sorry, but copyright infringement is theft.  In general usage, 
theft refers to an act of stealing, and "steal," itself, conveys the 
vague idea of taking property wrongfully.  The legal quibbles are not 
appropriate in general conversation, where the general dictionary is in 
use, not the legal dictionary.  Nobody should be dissuaded by legalese 
from using his ordinary English vocabulary.

Trying to find relevance, look at what Shakespeare wrote in the Sonnets.

" ... A third nor red, nor white, had stol'n of both,
And to his robbery had annexed thy breath,
But for his theft in pride of all his growth"

Must we insist S committed legal error?  Is there no technical legal 
distinction between annexation and theft?

"... He robs thee of, and pays it thee again,
He lends thee virtue, and he stole that word..."

How would a court rule on that?

"A man in hue all hues in his controlling,
Which steals men's eyes and women's souls amazeth."

Somebody's eyes have been stolen!  Off to court we go.

English is far more Shakespearean than it is "Blackwellian."

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

I'm sure they are.  However, those distinctions don't apply to general 
conversation.  The context is wrong.  Insisting to a non- legal listener 
that copyright infringement isn't theft is misleading.  You'll only 
confuse him, since he'll naturally assume you're intending to speak 
English.  He'll think you're asserting there's nothing wrong with it. 
He'll think you're advocating copyright infringement.

 >Talk about quibbling!

There was no quibble in my correction of what you wrote.  I did not 
write that fair use applied to "any purpose."  Indeed, I was careful to 
avoid that with my exact wording.  You miscast my remarks to enhance 
your own argumentative stance, which ain't kosher.

 >You refuse to answer my earlier question ...

Of course I do.  There is no actual case here before an actual judge, so 
it's an exercise in pure speculation.  I see no point to that.   One 
could manipulate imaginary facts, in an imaginary case, before an 
imaginary judge, to "prove" whatever one wants, with nothing really 
proven in the process.

 >... the odd admonition that "One should refrain from
 >trying to argue as a judge unless one is one."

That's just a little wordplay, which shouldn't bother anybody on a 
Shakespeare list.

 >Me: Also, innocence is presumed."
 >You: And this, of course, is a reason one should
 >refrain from trying to argue as a lawyer unless one is one.

Is one not to presume innocence, then?  Why not?

[3]-------------------------------------------------------------
From: 		Robert Projansky <
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Date: 		Saturday, 23 Sep 2006 06:54:09 -0700
Subject: 17.0840 Movie Stills
Comment: 	Re: SHK 17.0840 Movie Stills

A fairly simple question in this thread about movie stills seems to have 
devolved into:

(1) an argument about whether or not copyright infringement is "theft", and

(2) an elaborate exegesis of the copyright laws.

The theft argument is silly, first because there's no argument -- 
copyright infringement is a civil, statutory wrong and theft is 
criminal, period -- and also silly because somebody chose to take a 
figure of speech literally in order to have an argument at all.

Copyright law is extremely complicated and exegesis of any part of it 
here could be endless. Fair use questions involve trying to stay on your 
side of the right/wrong border when it's foggy and nobody quite knows 
where the border is anyway and the criteria to which one looks for 
guidance are often dangerously subjective. Also, you never want a court 
to decide the question for you (unless it's in someone else's case). 
Nobody is going to write a dispositive memo on the issue at hand here at 
SHAKSPER.

Given Hardy's burdens, is the "theft" argument or legal argument and 
advice by lay persons really appropriate grist for the SHAKSPER mill?

Yours, etc.,
Bob Projansky

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