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 <This email address is being protected from spambots. You need JavaScript enabled to view it.>
Date: Friday, 22 Sep 2006 22:17:33 -0400
Subj: Re: SHK 17.0840 Movie Stills
[2] From: Jeffrey Jordan <This email address is being protected from spambots. You need JavaScript enabled to view it.>
Date: Friday, 22 Sep 2006 22:12:38 -0500
Subj: Re: SHK 17.0840 Movie Stills
[3] From: Robert Projansky <This email address is being protected from spambots. You need JavaScript enabled to view it.>
Date: Saturday, 23 Sep 2006 06:54:09 -0700
Subj: Re: SHK 17.0840 Movie Stills
[1]-----------------------------------------------------------------
From: Larry Weiss <This email address is being protected from spambots. You need JavaScript enabled to view it.>
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 <This email address is being protected from spambots. You need JavaScript enabled to view it.>
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 <This email address is being protected from spambots. You need JavaScript enabled to view it.>
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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