Weekly Wednesday Wrapup - MORE THAN MEETS THE EYE

According to Wired, Paramount Pictures, the production company behind the Transformers movie franchise, is claiming that a video showing people filming footage for the Transformers 3 movie posted on YouTube constitutes copyright infringement. The video in question is 3 minutes long and shows the movie crew standing around, followed by a few seconds of a hydraulic lift shooting a car 100 feet down an alley. You can see a snippet of the original YouTube video here.

So far, Paramount has issued a DMCA take down notice prompting YouTube to the video. Ben Brown, the poster of the YouTube video, has filed a counter-notice contesting Paramount’s claims.

Is the posting of this YouTube video copyright infringement or is Paramount impermissibly using copyright law to shut down a legitimate video?

It depends.

In order to have a copyright, you must have a work fixed in a tangible medium. Paramount cannot claim a copyright in the footage until it is filmed. Thus, if Ben Brown shot his video at the same time that Paramount was shooting its scene, fixation could have arguably occurred simultaneously, thus both Paramount and Ben Brown own copyrights in their respective footage. However, if Paramount created copyrightable story boards for the action sequences, unauthorized filming and posting of the live action scene could be considered an infringing derivative work of the story boards.

Even assuming Paramount has a valid copyright claim, there is still a defense of de minimis copying. The footage of the crew preparing for filming is probably not part of Paramount’s shoot (unless it is being filmed by Paramount for “making of” features for the DVD release) and the actual action sequence that was filmed was only a few seconds long. In the context of the amount of footage Paramount will film for the movie (hundreds of hours) or even the final product (approximately two hours), Ben Brown’s snippet could be considered de minimis copying.

It could further be argued that Ben Brown’s YouTube video would not replace the market for the original feature length film. However, Ben Brown’s YouTube video could impact the sale of DVDs, which often include DVD extras such as deleted scenes and “making of” features.



Oren Gelber is an associate at Collen IP. She is guest posting while Tom is in Boston for INTA 2010.

Weekly Wednesday Wrapup

This week the big copyright news story was the RIAA victory against Limewire, a file sharing website for copyright infringement. See Decision here. In the course of the decision, the Court specifically notes the success of the RIAA against individuals. See Decision at footnote 22.

Is this the zenith for the recording industry in lawsuits for copyright infringement for file sharing?

Quite possibly as the recording industry has claimed that it will stop pursuing file sharing copyright infringement lawsuits. [Wall Street Journal]

The number of copyright infringement lawsuits nearly doubled from 2004 to 2005 (just under 6,000 lawsuits filed) when the RIAA lawsuits for file sharing were ramping up. However, a steady decline in the number of lawsuits has occurred to the point were the number of copyright infringement lawsuits is slightly more than 2,000.
Source: Administrative Office of the Courts

As one set of copyright owners may be ending its lawsuits on file sharing…BitTorrent may be the next target. As technology advances, the spectrum and size of the files to be shared grows. The producers of the Best Picture – “The Hurt Locker” are threatening suit and to learn the identities of BitTorrent users that illegally copied the movie. [ABC News]

Given that the RIAA has paved the way with its successes in copyright infringement actions and learning the identities of downloaders through ISP subpoenas, the MPAA and its members may have an easier time stopping infringements (and possibly fewer lawsuits filed for movie downloads).

Weekly Wednesday Wrapup - May 12, 2010

• FIRST SALE FRENZY: On June 7, 2010 the Ninth Circuit will hear appeals in UMG Recordings Inc. v. Augusto, a first sale case involving promotional sound recordings sold on Ebay; Vernor v. Autodesk, Inc., a first sale case involving software; and MDY Indus. V. Blizzard Entertainment, a first sale case involving software code in World of Warcraft video game.

Not one oral hearing on first sale doctrine but 3 – in the same day in the Ninth Circuit.


• Google filed for declaratory judgment claiming DMCA protection claiming that Google timely removed and/or disabled links to Plaintiff’s DMCA takedown notice where Plaintiff, a record company alleged and filed a previous suit for contributory and vicarious copyright infringement when RapidShare links appeared in internet searches on Google and Microsoft search engines. Plaintiff previously contested that Google and Microsoft responded to the DMCA takedown letter. The case raises issues about responses to DMCA takedown notices as well as the boundaries of contributory and vicarious copyright infringement.


• In a case initially filed in the Southern District of New York and recently transferred to Central District of California, over 40 photographers, owners of photography copyrights and the organization that operates the San Diego Zoo are seeking more than $11 million in damages from the fast-food chain Taco Bell for copyright infringement.

The Plaintiffs claim that 4 ecology-themed DVDs distributed along with Taco Bell’s “Kid’s Meal” menu items contained over 100 images that were used without authorization or compensation to the copyright owners. The subject images were licensed to SNAP TV Inc. by the wildlife-specialty stock photo agency Minden Pictures. The Complaint alleges that Minden has been unable to get SNAP TV to pay for its license and thus SNAP TV’s use of the images and by extension Taco Bell’s distribution of over 2 million DVDs containing these images constitutes copyright infringement.

Plaintiffs are seeking monetary damages as well as Taco Bell’s profits attributable to the alleged infringement. However, as the Complaint points out, these DVDs are promotional items which were distributed along with Taco Bell’s “Kid’s Meals” menu items. If the DVDs were given away for free, as is done with most Kid’s Meals at fast food chains, then there is not basis for computing profits attributable to their distribution—because there are none. Should they prevail upon their copyright claims, Plaintiffs may be better served by seeking statutory damages.

Catcher in the P.I. (preliminary injunction)

The April 30, 2010 decision by the Second Circuit has been the subject of many reports – predominantly regarding the likelihood of success for the Trustees of the J.D. Salinger literary trust. However, there is a separate and independent significance within the decision – the scope of the eBay decision by the Supreme Court [547 U.S. 388 (2006)] on injunctive relief. The Second Circuit’s decision remanded and vacated the preliminary injunction order (with a ten day stay to allow for Salinger’s estate to seek a temporary restraining order).

Weekly Wednesday Wrapup - May 5, 2010

This week the Second Circuit and rappers bring the headlines in copyright news:

• Remember: Copyright does not cover ideas including pureeing vegetables to “sneak” them into kids' diets. The Second Circuit Court of Appeals, upheld a lower court’s decision that no copyright infringement occurred as Jessica Seinfeld’s cookbook Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food was “very different” from Missy Chase Lapine’s cookbook The Sneaky Chef: Simple Strategies for Hiding Healthy Foods in Kids' Favorite Meals. See order here.


• Second Circuit upholds RIAA’s method of obtaining identities of alleged copyright infringers who downloaded music through subpoenas of internet service providers. See order here.


• Second Circuit vacates preliminary injunction and remands to district court to follow the Supreme Court’s decision in Ebay v. MercExchange where court finds likelihood of copyright infringement of The Catcher in the Rye and its main character Holden Caufield by Fredrik Colting and his book 60 Years Later: Coming Through the Rye. See order here.

Now onto the rappers:

• Lil Wayne has been sued for copyright infringement by rapper Dirahn Gilliams who claims Lil Wayne used portions of his song “Grinding Like A Goon” in the multi-platinum hit “Lollipop”.


• Continuing with the hip hop theme, Akon filed a copyright lawsuit in the Southern District of New York against Konvict cosmetics over their Konvict fragrance. According to the rapper, he had been in talks with the company over a fragrance line, however no deal was actually finalized.

And in other news:

• Don Henley has sued the Republican Senate hopeful Chuck DeVore for copyright infringement after Devore retooled Henley’s songs “The Boys of Summer” and “All She Wants to Do is Dance” to “Hope of November” and “All She Wants to Do is Tax” in campaign videos.
  See complaint here.

While fair use is likely to be raised by DeVore, I don’t think that he has the same arguments in the You Tube / Prince lawsuit. Nor do I think that a claim of parody could be successful – it is difficult to comprehend how a political attack ad to drum up political campaign contributions [there goes the whole not for profit angle] can be seen as a parody of the Don Henley songs. DeVore and other Defendants claim that they were making a political point as Henley represents the entertainment industry. [This is not only a weak argument but also leads anyone to believe DeVore could have taken any song by any artist and claim that they represent the entertainment industry.]