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MPAA v. The People

This legal complaint was filed on November 16, 2004 by the Motion Picture Association of America (MPAA) against "the people," or the unknown offenders of piracy in the U.S. It is important to clarify that it was the MPAA who filed the complaint on behalf of the studios it represents. The Document is outlined by three different sections: 1) Jurisdiction and Venue, 2) Parties, and 3) Count I: Infringement of Copyrights. The document references itself as, "a civil action seeking damages and injunctive relief for copyright infringement under the copyright laws of the United States." The complaint also states that the MPAA is targeting the Defendant (the people) for specific film piracy actions such as distributing and offering to distribute copyright works via the internet. A particularly informative portion of the "Parties" section of the formal complaint consists of a description of how the Plaintiffs (the studios) are affected by the Defendant. Described in this section is the fact that piracy allows people to freely and illegally obtain unauthorized copyrighted works. The Defendant then has the ability to distribute the illegal copy in near perfect condition regarding both sound and picture quality. The Plaintiff's main argument here is that just one copy of a film can cause an explosion of illegal distribution worldwide by limitless people. Included under the Infringement of Copyrights is an equally as informative explanation of willful process of the Defendant's piracy acts, and how the court should go about punishing those said acts. This formal complaint document shows how Hollywood is reacting to the piracy movement, and what measures they are taking to fight against it.

Digital Sampling and Copyright

JSTOR: Popular MusicVol. 7, No. 3 (Oct., 1988), pp. 337-338

This academic journal is published by Cambridge University Press and is a commentary on the first source listed above. Laing highlights the most important points of Frith’s work, offering his professional opinion in a disagreement, agreement, or clarification in the very least. A notable quality of this journal is the fact that is it printed in Great Britain; therefore it offers the insight of a foreigner analyzing American copyright law in contrast to that of the United Kingdom. This perspective draws attention to aspects of the law that may not been previously considered.

The essay is short and concise, wasting no words in a full examination of Frith’s work. He calls into question Frith’s assertion that the copyright system is an “aspect of the competition between different music producers…and…different music users,” and claims that there is much more to it than that. He acknowledges the complexities in the system in that they do not clearly favor or target neither the creator, nor the performer, nor the consumer. Slightly outdated, this essay was written before any sampling lawsuits were completed in the courts (at least in Great Britain) however, this serves as a strength instead of a weakness, however, seeing as his calculated predictions can be measured against the results to gauge how scholars viewed the subject.

This journal is not only an intellectual work in itself, but it is also an intelligent deciphering of some of Frith’s most significant assertions. This serves the reader well as some of his reading can be confusing and seem contradictory at parts. In reading Frith’s work, I will be sure to keep Laing’s journal on hand for color and clarification in order to most accurately comprehend the discussion and facts presented.

The Digital Songstream: Mastering ... - Google Book Search

This book is a guide – as its title might suggest – to all things digital when it comes to music. It serves as not so much an analysis on copyright in the music industry as a whole, but rather as a set of legal and technical guidelines so that one may participate in the consumption and production of such music without infringing on copyrights. In other words, it describes for the reader all of the ins-and-outs of the digital music industry so that one may know where in the law his practices may reside.

Hill’s book has entire chapters devoted to the assessment of what is legal, what is not, and how to go about participating in said sanctioned musical practices. He identifies a list of acceptable file-sharing websites, and offers his own commentary on why others are forbidden, as well as why these are acceptable. The book begins with a basic introduction into the technologies and methods used in the digital realm and then goes deeper to list available services and to comment on the merits of various practices. His advice is clear and he condones no illegal activity, yet he makes clear why certain people might be motivated to circumvent copyright laws in terms of digital music. He further lists specific file types and programs that are used in these practices and he identifies useful software. He finishes the book with another broad chapter about the “Conscience of Digital Music” as a whole as well as his prediction of the future of the industry.

Hill’s technological knowledge is a key aspect of this book that has allowed me to delve deeply into the details of digital music production and sharing. He explains these issues in simple terms, while still conveying the complexity of their implications. In writing this final paper, the technological terms and details from this book will provide much-needed expertise in a field that I am not necessarily well-versed in. In my analysis of the acceptability of digital sampling, I must first know how the practice works and what techniques are involved; this book offers me this knowledge, which is key to reaching a conclusion in my final paper on what sampling is acceptable within copyright law.

PAPARAZZI/BLOGGER FACE-OFF: OPPORTUNITY KNOCKING FOR A FAIR USE LIMIT?

In an article published in the Cardoza Arts and Entertainment Law Journal, Eaton O’ Neill, a J.D. Candidate at the Benjamin N. Cardozo School of Law, considers whether Perez Hilton’s use of X17’s photographs constitutes a fair use. As the cornerstone to his argument, O’Neill classifies Hilton’s use of the photographs as a satire, thereby affording a harsher evaluation to the Hilton’s claim of fair use. In a large portion of the article, O’Neill discussed landmark parody/satire cases, including Campbell v. Acuff-Rose Music, Inc., in which the Supreme Court determined that a rap music group’s parody of “Oh, Pretty Woman” constituted a fair use because it was “unlikely to serve as a substitute of the original” and that “no more [of the song] was taken than necessary”; Suntrust Bank v. Houghton Miffin Co., in which the Court of Appeals for the Eleventh Circuit vacated a preliminary injunction that barred Houghton Miffin Co. from publishing “The Wind Done Gone,” a parody of “Gone With the Wind,” because the parody would not “substitute nor ultimately displace revenue” of the original; and Dr Seuss Enters., L.P. v. Penguin Books USA, Inc., in which the Court of Appeals of the Ninth Circuit upheld the preliminary injunction barring Penguin Books USA from publishing “The Cat NOT in the Hat!,” a satire on the O.J. Simpson trial, because Penguin Books could not provide “justification for the very act of borrowing.” After discussing these landmark cases, O’Neill professes that he believes Hilton’s use of X17’s photographs represented a satire, and not a parody. He notes that a satire “employs the original work as a vehicle for commenting on some individual or institution and not on the work itself.” Hilton does not “aim his modifications to comment or criticize the original photos,” O’Neill adds, “but targets [his] commentary or criticism…on the celebrities themselves.” Evaluating the four factors of fair use from the perspective the Hilton’s use constitutes a satire, O’Neill proclaims that “the only reasonable outcome of the dispute between X17 and Perez is a finding of copyright infringement.”
This source is useful in my research paper as it presents a unique legal analysis in classifying Hilton’s work as a satire. According to the cases O’Neill provides in his article, if Hilton’s use were deemed a satire, he would have to prove justification for why he used a given photograph, as opposed to any other of the celebrity. Therefore, it would appear extremely difficult for any of Hilton’s uses of X17’s photographs to constitute a fair use. However, I believe justification in a selection of a specific photograph could be made when Hilton uses it to enhance his commentary. For example, if Hilton breaks news that Lindsay Lohan signed a major endorsement deal, and uses a photograph of her shopping and adds hundreds of dollar signs and fifteen more shopping bags in her hands, he transforms the photograph for the purpose of his news commentary. His justification is that he selected a photograph where Lohan was shopping, as opposed to her partying at a nightclub. Futhermore, I disagree with the declaration that all of Hilton’s uses are satires, as he may be targeting the photograph itself. For example, if a photographer captures a celebrity in a compromising position, and Hilton draws in a phallic symbol, Hilton can claim that he is parodying the position of the subject in the photograph itself, rather than the individual it portrays.

26 Cardozo Arts & Ent LJ 535

Universal City Studios Productions LLLP v. Lavadeira | Complaint for Copyright Infringement

In February of 2007, Universal City Studios Productions (Universal Studios) filed a complaint against gossip blogger Mario Lavandeira (p/k/a Perez Hilton) alleging copyright infringement. According to the document, Universal Studios produced and distributed the romantic comedy “The Break Up” starring Vince Vaughn and Jennifer Aniston. Universal Studios filed an application with the U.S. Copyright office to register the motion picture. During production or post-production of the motion picture, Universal Studio alleges that certain images of Jennifer Aniston were illegally copied, including a topless movie still of the actress. Obtaining this image (provided as “Exhibit A” in the complaint), Perez Hilton posted an “identical reproduction” on his website. Universal Studio charges that Perez Hilton “reproduced, distributed and publically displayed [Universal Studio’s] copyrighted images…in violation of [Universal Studio’s] exclusive rights…under 17 U.S.C. § 106.” Universal Studios sought an order from the court “enjoining Defendants from any further infringement” and requested the “U.S. Marshall to seize and impound all items…which infringed [Universal Studio’s] copyrights.” Responding to the lawsuit, Perez Hilton’s attorney Bryan Freedman stated, “[Hilton] used [the photograph] for the purpose of news commentary and satire as he often does with photographs. That constitutes fair use and there's nothing illegal or improper with that use."
The complaint and Freedman’s response are extremely useful in determining whether or not Perez Hilton’s use of a movie still constitutes fair use. First, is should be noted that Freedman chose the word “satire” to describe his client’s use of the photo, rather than “parody.” This puts his client in a more difficult position, as it is harder to proclaim fair use for satirical works. When posting the image on his website, Hilton drew three white teardrops under Aniston’s eyes, claiming that this constitutes a fair use as it transforms the work. Although the case was settled out of court, a quick analysis of the four factors, which will be elaborated on in my research paper, clearly demonstrates that these few marks do not constitute a fair use of the movie still. There is nothing transformative in Hilton’s expression of the photograph, as no new meaning was added to the work. The purpose of Hilton’s use was simply to display a topless photo of a famous actress. The commentary he added below, simply stating that the picture was a topless photo of an actress, was completely unrelated to the three teardrops. Had the commentary discussed Aniston’s highly emotional nature, Hilton would have a better claim of fair use as he transformed the picture to match his opinions. Furthermore, in regard to the nature of the work, the fact that that photo of Aniston was not used in the final cut of the movie weighs against Hilton, as Universal Studios has the right to show the first public appearance of the movie still. The third factor, amount and substitutability of portion taken, does really not weigh in favor of one party, as the “newsworthy” significance of the movie still and the alleged satire requires the whole movie still to be used. The final factor, the effect of use upon the potential market, significantly weighs in favor of Universal Studios. As Universal Studios held the copyright to this still, it is possible the studio could have licensed the image for a substantial fee. Overall, Hilton’s use of the movie still as the news story does not constitute a fair use as he did not transform the still.

Perez Hilton: Fair Use Blogger or Incessant Infringer?

In the fast-paced entertainment world, Perez Hilton has become a mainstream celebrity, operating his gossip-driven website www.perezhilton.com. Before the weekly tabloids hit the stands, Hilton breaks celebrity gossip on his website, which receives million of visitation hits a day. To accompany his commentary, Hilton uses photographs, music, and movie clips, all of which are copyrighted material. This research paper examines claims of copyright infringement against the famous blogger by photographers, movie studios, and photography agencies. In his defense, Hilton argues that his use of this copyrighted material constitutes fair use, as he transforms the works through his infamous white doodling for the purposes of his news commentary. This paper will elucidate whether Hilton, on "Hollywood's most hated website", violates the rights of valid copyright holders, or transforms their material for a different purpose, through careful of examination of legal documents and the four factor fair use test, to determine: "Perez Hilton: Fair Use Blogger or Incessant Infringer?"

Family Entertainment and Copyright Act

While this act stipulated a number of things, perhaps the most contentious portion is its legalization of DVD filters like ClearPlay. The section entitled the Family Home Movie Act (FMA) states that DVD players that allow consumers the option of editing out specifically categorized content (such as drug use or sexual themes) are legal. It is not legal, however, to create a new, permanent copy of the DVD (as CleanFlicks did).

This piece of legislation complicates my argument, as it means that ClearPlay is considered legal. However, other articles I have researched may still contradict this legislaton. For example, the FMA implies that artists in America do not have moral rights, but a stipulation of our membership in the Berne Convention is that we must respect moral rights. Second, Amstrong makes a clear case for moral rights and for the appeal of FECA; and Madison's theory of rewriting fair use suggests that even though ClearPlay may pass the four factor test, it still may not be fair use.

Bringing Sexy Back

Metamorphosis of Artists' Rights in the Digital Age

In this transcription of a symposium on the changing rights of the artist, Jonathan Band (partner at Morrison and Foerster), Rebecca Tushnet (Asst. Professor at NYU Law School), and Eugene Mopsik (Executive Director of the American Society of Media Photographers) discuss the rights of the directors whose films are edited by ClearPlay technology. Band recounts the comments of various lobbyists and political figures testifying on the Family Entertainment and Copyright Act, stating that the Register of Copyrights argued against the bill because users have the choice to buy a product and should simply refrain from buying an offensive product rather than disrespect the vision of the author. Jack Valente also testified against the bill because he felt that the technology indeed infringes on the derivative work right because the software could be designed to skip not just offensive content, but any content. Mopsik addresses the concern that viewers attribute the features and feel of the edited work to the director’s vision. Lastly, Tushnet acknowledged that there is a “spectrum” of acceptable editing (ClearPlay is acceptable while CleanFlicks is not), and that consumers watching a CleanFlicks DVD have the same experience as consumers watching a ClearPlay DVD.

This piece supports my thesis as it discusses some of the immediate political reaction to the legislation that legalized ClearPlay. Even though FECA is now a law, the arguments made above against the legislation are still valid, particularly Valente’s argument. Mopsik’s discussion of attribution is more in depth than those in other articles, which mostly discuss whether or not a consumer knows the film is edited, and instead analyzes who the vision belongs to rather than who has the right to decide the vision.

In the Know

This blog is divided into three different parts that deal with distinct, yet related topics. Firstly, there is the issue of “preserving the quality of movies for fans like these and so many others, we must stop these Internet thieves from illegally trading valuable copyrighted materials online” (movies television shows aren’t mentioned, but the same is true). Strong ticket and DVD sales are likely with huge blockbuster films even with films that are illegal downloaded and distributed prior to actual theatrical release. Movies such as “Star Wars,” with huge fans, do not have to worry about the potential consequences. Films that don’t have a set fan bases are more likely to be affected by the illegal downloading process.

Secondly, the issue of the Boucher Bill is discussed. The U.S. Congress was sent a letter this past May arguing the passing of the Boucher-Doolittle Bill, saying “(1) that the legislation would “legalize hacking tools” and that (2) the bill misinterprets the 1984 U.S. Supreme Court Betamax decision.” However, that information was incorrect and opponents of the bill were quoting a previous year’s version. In actuality, this year’s version of the bill says that (1) “it would not legalize the manufacture, sale or other public provision of circumvention (or so-called “hacking”) tools” and (2) by directly quoting the Supreme Court’s Betamax decision, “it shall not be a violation of the Copyright Act to manufacture or distribute a hardware or software product capable of substantial non-infringing uses.”

Lastly, there is discussion of the FCC’s case arguing for the implementation of broadcast flags into digital television (DTV). “The core issue is consideration of the conditions under which broadcasters will turn off their current, over-the-air analog signal and replace it with a digital one.” Without the new, proper equipment, consumers’ televisions will no longer be in working order. The FCC wants to put broadcast flags in each individuals television to detected “what can be copied or transmitted, and under what terms.” The FCC court case was dismissed after the courts decided that the FCC did not have the power necessary to do what the intended. The FCC is now looking to implement legislation to give them the power they need. All in all, the broadcast flags will cost consumers a lot of money and the idea does not seem to be well received.

FECA Matter

In “Feca Matter,” which appeared in the John Marshall Review of Intellectual Property Law, Jacob Armstrong states that arguments for DVD-editing technology like ClearPlay have favored consumer rights over artist rights, and that artists rights must be protected. Armstrong, an attorney and legal scholar, argues that regardless of why or how a film is edited, the resulting film changes the expression of the copyrighted work that the director intended. While consumers may want the right to change the way a film is viewed at home using a specialized DVD player like ClearPlay rather than a remote control, artists want the intended meaning of their work to be preserved. Furthermore, the passage of FECA violates the U.S.’s presence in the Berne Convention, which states that members must have moral rights in their legislative understanding of copyright law.

Armstrong’s article supports my thesis, as it makes a strong, clear case for artists’ rights and shows a coherent path towards moral rights, rather than simply proposing them as necessary for the illegalization of ClearPlay. Furthermore, Armstrong points out that companies like ClearPlay have claimed in court that they are not creating anything new from the film; that they are therefore preserving the film and therefore not violating artists’ rights. However, if such is the case, then ClearPlay is not fair use because it does not transform the work and it takes most of the film (or the “heart” of the work).

Differences that Don't Distinguish: Cablevision Loses Copyright Case on Networked DVRs

In a copyright infringement case, the judge ruled against the company Cablevision. Customers were given a DVR remote to store television shows where “the hard drive itself was stored on Cablevision property.” The courts decided that this made “Cablevision liable for reproducing and transmitting the programs without permission.” In other words, when Cablevision customers record television shows, no matter if they actually watch them or not (“buffer copies”), Cablevision is responsible for creating this “infringing copy.” Since all the saved programs are stored in Cablevision’s hard drive, the shows are then transmitted to the user after the broadcast, whenever they choose to watch their show. Thus, officials are claiming that Cablevision “needs to manipulate signals in order to record the shows a user has selected” and, in essence, calling the company a “broadcast pirate.” The Cablevision case “does nothing to curb piracy”; if anything it “discourages innovation.” Also, it seems that Cablevision did nothing to actually infringe any copyright laws, which “center not on the details of the machinery, but on how the rights in a work are affected.” This is a major problem for the officials who deal with copyright laws. If DVR and other recording techniques become so complicated and so afflicted with copyright laws, consumers may refuse to use them; thus, consumers would not be able to keep up with their favorite shows and probably never be willing to buy the DVD box sets later in life. These copyright laws could negatively affect the market more so than DVRS (what they see to be the problem in this case) ever would have.

Consumers using Cablevision were not affecting how the works were used, the general market was in no way affected, and there was no copyright infringement. Therefore, it seems that all this lawsuit did was enrage the public and prove that copyright laws are only “being used as a tool to scrape more money from wherever the studios can get some.”

Internet Law-U.S. Copyright Crackdown 2007 Man Accused of Uploading Copyrighted Material in LiveDigital.com

In a recent case, television studios realized that a certain individual had gotten a copy of a number of episodes of the popular Fox television show 24. These episodes had yet to be aired, but were soon uploaded to the Internet. The individual was charged with “uploading copyrighted material…knowing the work was intended for commercial distribution.” The episodes were first uploaded to the website LiveDigital, but quickly reached YouTube, therefore both “were served subpoenas under the DMCA demanding they disclose the identities of the users who uploaded the episodes.” In this landmark case, the individual could receive a rather severe punishment. Not only were the uploaded episodes considered valuable because of the popularity of 24 and the fact they hadn’t been aired yet, but copyright officials are trying to use this case as an example for future pirates. Normally, Internet copyright infringement cases are taken up against “user share sites.” The fact that an individual did the same gives copyright officials more incentive to protect “‘the rights of the content owners who invest millions of dollars in a television series must be protected.’”

Twentieth Century Fox, who produces 24 and is a major studio in the television industry “hopes it [this case] will serve as a powerful warning that uploading copyrighted TV shows and movies to the Internet can be a crime with significant penalties and will be prosecuted as such. ”It seems fair to say that this particular studio is not alone in their beliefs. It also seems that the individual prosecuted in the 24 case is being so harshly is so that others will be deterred from attempting the same. Television copyright officials “have no choice but to take it seriously, because if they don’t catch it early, they won’t be able to stop it at all ’” Without enforcing harsh punishments, illegal downloading and uploading of copyrighted material will continue to the point that there will be no laws to prevent it or punish for it. Officials are implementing harsh penalties, but more importantly they are putting into effect laws that are current with the technology.

X17 Inc. v. Lavandeira | Complaint for Copyright Infringement

X17 is a photography agency that “owns and operates one of the world’s leading archives in celebrity-related photographs.” Perez Hilton posted reproductions of X17’s work, and often drew sexually explicit “satirical” doodling on the pictures. Using more than fifty-one reproductions of X17’s images, X17 filed a complaint alleging copyright infringement. According to the complaint, “X17 has licensed the rights to reproduce its copyrighted works…to hundreds of newspapers, television stations and other prominent media outlets throughout the world.” X17 alleges that Hilton used “timely photographs covering breaking news events” on his gossip written website that “receives 2.5 millions viewers” daily and “generates thousands of dollars per day in advertising revenue from it website. Some of the photos included “Britney Spears driving her son on her lap,” “Britney Spears exposing herself,” and “Cameron Diaz in a beige sweater out golfing.” In the case of all fifty-one photos, X17 argues, “The photographs were virtually identical reproductions of copyrighted work. [Hilton] thereby reproduced X17’s copyrighted works in copies, distributed copies of the copyrighted works, and publically displayed copyrighted works…in violation of exclusive rights under 17 U.S.C. § 106 that X17 holds in the photographs.” As a prayer for relief, X17 asked the court “for the entry of an injunction providing that [Hilton]…be permanently enjoined” from using X17’s photographs. Additionally, X17 asked for “actual damages for copyright infringement,” “a seizure order directing the U.S. Marshall to seize and impound” X17’s copyrighted photos in Hilton’s possession, and “for a disgorgement by [Hilton] to [X17] of all profits” derived from Hilton’s use of the photographs, among other damages and fees.
This complaint is useful in my research paper as it involves Hilton’s use of newsworthy and not-newsworthy copyrighted photographs. In the document, X17 establishes that hundreds of gossip tabloids and magazines rely on its photographs, which break news events. In the case of these photographs, it would be hard for Hilton to proclaim fair use. A quick analysis of the factors of fair use reveals that Hilton’s doodling on the X17’s image of Britney Spears driving with her son on her lap does not transform it in any way, as his news story simply refers to Spear’s reckless endangerment of her child. Hilton uses the image in it entirety and if posted on his website immediately, it would destroy the licensing value of the photograph. Therefore, Hilton’s use of a newsworthy photograph, in which he doodles on the photograph, does not constitute fair use. This is the same if Hilton did not doodle, because if Hilton can use the image and write his own news story below discussing what's in the photo, and this was determined to be a fair use, why would tabloids ever license a photo if they could also claim fair use? In that case, why would paparazzi or photographers exist at all if they could not license their photos? Finally, Hilton’s use of a non-newsworthy photograph, such as Heather Locklear eating, may be deemed a fair use if he transforms the photograph to match his news story. Overall, this source allows me to evaluate different situations of Hilton’s use of photographs and whether or not his use of copyrighted images constitutes a fair use.

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