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.