When One Man's Art is a Copyright Crime at DVinfo.net

Peter Wiley · May 6th, 2004, 05:22 AM

An interesting article in the New York Times of 5/6/04 about a "video artist" who has been making videos in movie theatres and using them as part of his art -- and what might happen to him.

http://www.nytimes.com/2004/05/06/ar...IDE.html?8hpib

Peter Moore · May 6th, 2004, 07:04 AM

If what he's doing is a fair use, which it sounds like it might be, he would be protected even under criminal copyright law. Though I don't know the specifics of this new proposal, I doubt it eliminates the fair use defense.

Rob Belics · May 6th, 2004, 07:59 AM

How is it fair use? He's copying movies at the theatre!

Chris Hurd · May 6th, 2004, 08:43 AM

I would have to suppose that the "fair use" defense would not apply in his case.

Richard Alvarez · May 6th, 2004, 09:30 AM

I notice he "Declined to be photgraphed for this article"?

One would assume he would be sympathetic to the reporters need to include his image in the work.

The logic of how man-made images and logos which are copyright and trademark protected... is the same as nature created trees and mountains ... escapes me.

But then, I am married to a trademark and copyright attorney. And darn glad to have her look over my contracts.

John Britt · May 6th, 2004, 10:59 AM

The question of where do you draw the line when it comes to cultural commentary also came up in the early '90s, when collage artist Robert Rauschenberg was successfully sued by photographer Pete Turner. I love linking to this site:

http://www.benedict.com/Visual/Rausc...schenberg.aspx

Rauschenberg used a piece of an ad from Time Magazine in one of his works. The ad consisted of a photograph by Turner. Most people might consider it an incidental use (personally, I would) but the courts didn't see it as Fair Use.

[And now for my quick tangent:]

Personally, though, I found this quote from the NYT article to be most intriguing:

"The film industry has lobbied fiercely for this law, arguing that up to 80 percent of all illegal copies of films are made in theaters." (7th paragraph down)

Oh really? Then maybe they'd like to get off the backs of companies like DVDxCopy and stop complaining about people who want to make back up copies of DVDs that we legally own. (actually, I prefer dvdshrink to dvdXcopy, but the sentiment is the same)

Peter Moore · May 6th, 2004, 11:07 AM

Did you read the whole article? What he's doing is highly transformative (trying to depict the ambience of a movie theater rather than focusing on the movie itself, as exemplified by the fact that the camera pans around everywhere to capture all sorts of sights and sounds), and it is unlikely to have any commercial impact on the original since the art is not for sale and the copies do not seem watchable as substitutes for the original. Whether or not he's taking the movies in their entirety is not clear from the article - if so that could weigh against him. But at any rate the focus of his work seems to be the theater experience, not the movie. Based on what I've seen so far I think it's classic fair use.

Obviously this is not legal advice to anyone, just my academic opinion.

Rob Belics · May 6th, 2004, 11:08 AM

The only thing is, if someone makes a copy of their own dvd they are not as likely going to setup a website to distribute it.

I seriously question this idea of "backup copies" of CDs and DVDs. My son has a hundred DVD and videotape movies and none have ever gone bad. Until yesterday we never received an unplayable dvd from Netflix or Blockbuster.

My other son had cd go bad within days of buying it (a game). The company replaced it for free.

I understand the "what if" reasoning but, to tell the truth, the only time I've ever copied anything was to give it to someone else so they didn't have to buy or rent a copy.

Rob Belics · May 6th, 2004, 11:10 AM

'Fair use' does not apply to 'pay to view'.

John Britt · May 6th, 2004, 11:13 AM

<<<-- Originally posted by Rob Belics : 'Fair use' does not apply to 'pay to view'. -->>>

Huh? Is that directed towards Jon Routson's work? The article said he didn't sell his work.

Richard Alvarez · May 6th, 2004, 11:14 AM

Peter,

"Fair use" is a tricky thing, that ultimately will be left up to some judge/jury to decide. So the smart thing to do is suss this sort of thing out BEFORE one spend time and money creating a project. Why roll the dice when you can lose so much?

Aside from fair use issues, there are "moral rights" issues depending on the use and depiction. The producers of that movie where Al Pacino played the devil. (Devils Advocate??) got sued by the artist of the huge bas-relief sculpture behind him.

Copyright, trademark, fair use... I've learned this is a case where it is NOT easier to get forgiveness than permission.

John Britt · May 6th, 2004, 11:17 AM

Richard --

Yes, it was Devil's Advocate, also discussed at benedict.com:

http://www.benedict.com/Visual/Devil/Devil.aspx

I told you I love linking to that site!

Peter Moore · May 6th, 2004, 11:46 AM

Richard,
I am a lawyer so I know about how tricky and fact-specific fair use can be. I would not advise anyone to go ahead and copy without permission unless the fair use defense was a slam dunk (which it rarely is). But if we're talking about whether or not the new criminal statute would prevent things like this, I don't think it would because I think fair use would continue to protect things like this, this thing in particular.

"'Fair use' does not apply to 'pay to view'."

Doing something for profit vs. for educational or non-profit purposes is a factor in fair use, but it is not dispositive. You can in some circumstances profit and still have a fair use defense.

Rob Belics · May 6th, 2004, 12:04 PM

What I meant by 'pay to view' was the theatre's film. If you can't see the film unless you pay to see it, how can you get 'fair use' to use it in your project? Besides, you are only allowed a limited portion of it in the first place.

Peter Moore · May 6th, 2004, 12:28 PM

Here's the statutory definition of fair use:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." 17 U.S.C. Sec. 107.

So your point about being pay per view might cut in favor of the copyright owner on factor #2, nature of the work. However, I think the other factors weigh heavily to the artist. No one factor is usually determinative - they all are weighed equally.

May 6th, 2004, 05:22 AM	#1
Peter Wiley Major Player Join Date: Apr 2002 Location: Lewisburg PA Posts: 752	When One Man's Art is a Copyright Crime An interesting article in the New York Times of 5/6/04 about a "video artist" who has been making videos in movie theatres and using them as part of his art -- and what might happen to him. http://www.nytimes.com/2004/05/06/ar...IDE.html?8hpib

May 6th, 2004, 08:43 AM	#4
Chris Hurd Obstreperous Rex Join Date: Jan 2001 Location: San Marcos, TX Posts: 27,368 Images: 513	I would have to suppose that the "fair use" defense would not apply in his case. __________________ CH Search DV Info Net \| 20 years of DVi \| ...Tuesday is Soylent Green Day!

May 6th, 2004, 07:04 AM	#2
Peter Moore Trustee Join Date: Oct 2002 Location: Arlington VA Posts: 1,034	If what he's doing is a fair use, which it sounds like it might be, he would be protected even under criminal copyright law. Though I don't know the specifics of this new proposal, I doubt it eliminates the fair use defense.

May 6th, 2004, 07:59 AM	#3
Rob Belics Major Player Join Date: Apr 2003 Location: St. Louis, MO Posts: 581	How is it fair use? He's copying movies at the theatre!

May 6th, 2004, 09:30 AM	#5
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	I notice he "Declined to be photgraphed for this article"? One would assume he would be sympathetic to the reporters need to include his image in the work. The logic of how man-made images and logos which are copyright and trademark protected... is the same as nature created trees and mountains ... escapes me. But then, I am married to a trademark and copyright attorney. And darn glad to have her look over my contracts.

May 6th, 2004, 10:59 AM	#6
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	The question of where do you draw the line when it comes to cultural commentary also came up in the early '90s, when collage artist Robert Rauschenberg was successfully sued by photographer Pete Turner. I love linking to this site: http://www.benedict.com/Visual/Rausc...schenberg.aspx Rauschenberg used a piece of an ad from Time Magazine in one of his works. The ad consisted of a photograph by Turner. Most people might consider it an incidental use (personally, I would) but the courts didn't see it as Fair Use. [And now for my quick tangent:] Personally, though, I found this quote from the NYT article to be most intriguing: "The film industry has lobbied fiercely for this law, arguing that up to 80 percent of all illegal copies of films are made in theaters." (7th paragraph down) Oh really? Then maybe they'd like to get off the backs of companies like DVDxCopy and stop complaining about people who want to make back up copies of DVDs that we legally own. (actually, I prefer dvdshrink to dvdXcopy, but the sentiment is the same)

May 6th, 2004, 11:07 AM	#7
Peter Moore Trustee Join Date: Oct 2002 Location: Arlington VA Posts: 1,034	Did you read the whole article? What he's doing is highly transformative (trying to depict the ambience of a movie theater rather than focusing on the movie itself, as exemplified by the fact that the camera pans around everywhere to capture all sorts of sights and sounds), and it is unlikely to have any commercial impact on the original since the art is not for sale and the copies do not seem watchable as substitutes for the original. Whether or not he's taking the movies in their entirety is not clear from the article - if so that could weigh against him. But at any rate the focus of his work seems to be the theater experience, not the movie. Based on what I've seen so far I think it's classic fair use. Obviously this is not legal advice to anyone, just my academic opinion.

May 6th, 2004, 11:08 AM	#8
Rob Belics Major Player Join Date: Apr 2003 Location: St. Louis, MO Posts: 581	The only thing is, if someone makes a copy of their own dvd they are not as likely going to setup a website to distribute it. I seriously question this idea of "backup copies" of CDs and DVDs. My son has a hundred DVD and videotape movies and none have ever gone bad. Until yesterday we never received an unplayable dvd from Netflix or Blockbuster. My other son had cd go bad within days of buying it (a game). The company replaced it for free. I understand the "what if" reasoning but, to tell the truth, the only time I've ever copied anything was to give it to someone else so they didn't have to buy or rent a copy.

May 6th, 2004, 11:10 AM	#9
Rob Belics Major Player Join Date: Apr 2003 Location: St. Louis, MO Posts: 581	'Fair use' does not apply to 'pay to view'.

May 6th, 2004, 11:13 AM	#10
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	<<<-- Originally posted by Rob Belics : 'Fair use' does not apply to 'pay to view'. -->>> Huh? Is that directed towards Jon Routson's work? The article said he didn't sell his work.

May 6th, 2004, 11:14 AM	#11
Richard Alvarez Inner Circle Join Date: Sep 2002 Location: San Mateo, CA Posts: 3,840	Peter, "Fair use" is a tricky thing, that ultimately will be left up to some judge/jury to decide. So the smart thing to do is suss this sort of thing out BEFORE one spend time and money creating a project. Why roll the dice when you can lose so much? Aside from fair use issues, there are "moral rights" issues depending on the use and depiction. The producers of that movie where Al Pacino played the devil. (Devils Advocate??) got sued by the artist of the huge bas-relief sculpture behind him. Copyright, trademark, fair use... I've learned this is a case where it is NOT easier to get forgiveness than permission.

May 6th, 2004, 11:17 AM	#12
John Britt Major Player Join Date: Sep 2003 Location: Atlanta, GA Posts: 621	Richard -- Yes, it was Devil's Advocate, also discussed at benedict.com: http://www.benedict.com/Visual/Devil/Devil.aspx I told you I love linking to that site!

May 6th, 2004, 11:46 AM	#13
Peter Moore Trustee Join Date: Oct 2002 Location: Arlington VA Posts: 1,034	Richard, I am a lawyer so I know about how tricky and fact-specific fair use can be. I would not advise anyone to go ahead and copy without permission unless the fair use defense was a slam dunk (which it rarely is). But if we're talking about whether or not the new criminal statute would prevent things like this, I don't think it would because I think fair use would continue to protect things like this, this thing in particular. "'Fair use' does not apply to 'pay to view'." Doing something for profit vs. for educational or non-profit purposes is a factor in fair use, but it is not dispositive. You can in some circumstances profit and still have a fair use defense.

May 6th, 2004, 12:04 PM	#14
Rob Belics Major Player Join Date: Apr 2003 Location: St. Louis, MO Posts: 581	What I meant by 'pay to view' was the theatre's film. If you can't see the film unless you pay to see it, how can you get 'fair use' to use it in your project? Besides, you are only allowed a limited portion of it in the first place.

May 6th, 2004, 12:28 PM	#15
Peter Moore Trustee Join Date: Oct 2002 Location: Arlington VA Posts: 1,034	Here's the statutory definition of fair use: "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." 17 U.S.C. Sec. 107. So your point about being pay per view might cut in favor of the copyright owner on factor #2, nature of the work. However, I think the other factors weigh heavily to the artist. No one factor is usually determinative - they all are weighed equally.