Michael Jackson Estate Turns the 'Fair Use' Tables on Disney
torrentfreak.com
torrentfreak.com
Small companies innovate.
Large companies litigate.
Mega companies legislate.
This is a problem with the US' letter of the law legal system. We make excuses and justify actions because they aren't explicitly listed as illegal, even though we all know they're in bad faith.
And now try to claim exclusive rights over those same stories, no less.
https://en.wikipedia.org/wiki/History_of_copyright_law_of_th...
https://www.imdb.com/title/tt0032455/soundtrack?ref_=tt_trv_...
Whether they were required to or not doesn’t matter at all. They didn’t pay him. They could have payed him even if they were not required to by law.
Great quote
But... are they legal? I wouldn't consider that a sure thing. As much as I've enjoyed some of them, I've often thought the "extensive video review" industry is very likely on the wrong side of copyright. It is true they check off a lot of the fair use criteria, certainly. But one of the core determinations is "can you consume this work in lieu of the original?" and some of those things come perilously close to that line, if they don't outright cross it. Obviously, it is not the same experience, but you certainly come away from such a review knowing all the characters, all the major plot points and often a significant portion of the minor ones, probably the best special effects scenes, a decent slice of the music, and the ability to fairly thoroughly BS your way through a conversation about the movie with people who went to it the normal way without them necessarily realizing you never actually saw it.
Grab some 8yo, throw them in front of the RLM reviews, and tell them it's Star Wars... are they gonna watch it and be equally satisfied?
Extensive reviews are just like in-extensive reviews... Knowing all the characters is a staple of movie reviews in all forms, as are plot synopses. Story import of character and scene does not factor in to whether it is review-able in any medium. These issues are are applicable to most written movie reviews, book reviews, and song reviews too. They are exempt from Copyright for the same reasons. Why would we want a culture where superficial critique is acceptable, but in-depth critique is rejected?
You hit the nail on the head: "it is not the same experience". If it starts providing some of the same experience, via excessive clips or music, then they infringe. Too much of a song, clips with no purpose, etc. RLM is among the better cases for meaningful reviews.
That is not the question the law asks. The question the law asks is the one I gave. It is naked and unashamedly commercial in nature. A more way of phrasing it might be, grab an 8yo who has not seen the movie in question, show them the review, maybe take a moment to wonder if that's necessarily a good idea for this specific review, and then ask them if they are still interested in seeing the movie. Or perhaps better, if we're talking 8, sit them in front of the movie and see if perhaps they wander away halfway through because they already know the ending.
At the margin, the answer is likely to be that the review substantially reduces the need to consume the original content. That is, for a single case it's trivial to imagine anything you want happening. But if you imagine repeating that experiment thousands of times, is the desire to view going to go down? It's easy to hypothesize your kid saying "yes I still want to see it all the way through in fact I want it more than ever" but that's just an assertion moreso than an argument. It's a possible outcome, but I find it much easier to believe that at the margin, desire is reduced. In that case it would be very likely to fall afoul of current fair use law; even given that again I fully stipulate their superficial conformance to a number of the 4-part test for fair use in US judicial decisions they could still lose.
If you believe it’s for the memes, then extended reviews like RLM wouldnt be allowed. If you believe it’s for the artifact as the creator meant for you to consume it, then RLM is off the hook.
Personally I don’t think people consume entertainment for the memes, at least not primarily. The memes arise from the interpretation of the individual and the group that consumes the entertainment. The creators of the artifact mean for you to consume it in a specific way, and if you reproduce that without their permission then you are violating copyright.
That's not correct — according to the Copyright Act's fair-use provision, the purpose of an infringing use, including whether it's commercial or for nonprofit- or educational purposes, is the first-listed of four factors to consider in determining whether the infringing use is "fair."
The Supreme Court discussed this in the Campbell v. Acuff-Rose case. In that case, the owner of the copyright in the Roy Orbison classic Oh, Pretty Woman had sued 2 Live Crew for their down-and-dirty parody of the song. The Court held that the parody was fair use, even though it was commercial, largely because the parody was "transformative." [0]
[0] https://www.law.cornell.edu/supct/html/92-1292.ZO.html#FNSRC...
It's even worse then being aired on primetime TV - it was put out on the wide-open internet, for anyone and everyone to see.
RLM made a critique and review -- distinctly mentioned in fair use laws -- using star wars clips. Absolutely legal, 100%, explicitly protected. Movie reviews get to show bits of movies, book reviews get to mention characters, etc etc within strict guidelines (hence the re-release of the review).
What the lawyers are talking about in this case is showing almost all of Star Wars with some interviews in front of it, calling it a "documentary", and then having full usage to complete songs. Very different. They are talking about other publishers sneakily re-releasing Star Wars for profit, not reviews.
Can we please figure out how we can have renewable copyright law which cost over $1,000 a year per copyright item. That way Disney can keep Mickey Mouse and 99% of the rest gets released as public domain. If not they are looking to increase the Copyright to 125 years after death.
I pray the reign of terror of Mickey Mouse might be over soon. https://boingboing.net/2018/01/08/sonny-bono-is-dead.html
No fuck Disney and their reshaping of America's copyright law. For one stupid animated mouse they changed how the entire Public Domain worked. It's not really possible to boycott Disney at this point, but if I could I would because of this issue alone.
How not? I consume nearly no Disney media. My biggest consumption right now would likely be hulu, and that's a shared account that I don't pay for
[0]http://newmediarockstars.com/2015/08/did-epic-rap-battles-pi...
I'm not saying it's impossible but it is sure hard at this point. Personally I'd really feel like I was missing out by boycotting Star Wars or Marvel. I know not everyone likes the direction Disney is taking these franchises but I continue to enjoy them, especially when sharing with my kids. I'd miss out if I tried to boycott Disney.
Doesn't mean I like them as a company though!
I actually didn't realize it was so hard to avoid most of those things. They're full of the same old same old, and produce nearly no satisfaction for me. It's like eating fast food, very tasty, but of no quality. Though I say that, and yet regularly consume fast food. Goes to show my opinion of most "mainstream" media I guess
https://en.wikipedia.org/wiki/History_of_copyright_law_of_th...
Ex.
First 10 years - free
Second 10 years - $1k/year
Third 10 years - $10k/year
Fourth 10 years - $100k/year
and so on...
I'd like to try exactly the opposite: when a work has been seen by a million people, it becomes public domain — whether that takes one year or 100 years.
Why? Because when you make a derivative work of Harry Potter or Star Wars you are not thinking that you can hoodwink your audience into believing that yours is the original, rather you're writing for a cultural context that assumes that people know the original. And to me that's exactly the underlying idea behind fair use.
Disney can and will easily pay 100,000 per year for all their productions in the vault, so no change in the status quo there.
However, most sci-fi books from the 70s which are already out of print, will become public domain, and you can now write "fan-fiction" for it and get paid without having to seek out the original copyright holders (if they still even exist).
It's questionable if Asimov's estate will pay 100,000 per year for each of his short stories, and lots of those make fantastic premises. If we didn't have eternal copyright, they'd make up a part of our literary landscape like Romeo and Juliet, or fairy tales do---something that can be freely alluded to, or redone.
Now that I thought about it. The Monster is the best story of the century and it can't be touched.
The bulk of the complaint lists terrible things Disney’s legal department has done, but it’s not clear how those actions are legally relevant. “Hypocrisy” is not one of the factors in whether something is fair use.
The statement that other documentaries get licenses from the estate doesn’t say whether those documentaries are actually legally required to get those licenses. And it certainly doesn’t say whether Disney needs a license for its project.
I’m going to predict that the music recording claims will be dropped when Disney shows it has a blanket license, and the other claims do look like fair use to me. But maybe Disney will settle before trial.
Presumably you've gotten yourself confused with what are called mechanical licenses, which only cover songs, and only the music and lyrics (not original recordings) and have basically nothing to do with this at all.
So all four claims are relevant, but Disney’s alleged hypocrisy doesn’t seem to me to serve any purpose in the complaint (other than to get the thing noticed by the media).
The confusion here appears to be with what are called compulsory licenses for music[0]. In those circumstances, people are allowed to pay songs on radio stations and in live music venues, etc, without having to negotiate with each individual rightsholder. A person who wrote a song has no choice about who is allowed to play one of their songs in a stadium, or on a radio broadcast, once they've publicly released the work.
[0] There is an exception for live broadcasts, which don't apply here either.
No argument with you there. My point was that there do exist some types of blanket licenses (for specific purposes, of a limited body of works).
I’m not an expert on the legal/business side but I used to write music for tv shows when they couldn’t secure licenses and needed replacements.
I notice ASCAP’s website has information on licenses for TV stations, but not for, say, TV shows.
There is, however, the legal concept of estoppel, which is, essentially, a prohibition on legal-argument hypocrisy.
As I understand it (IANAL), it applies to much narrower situations than what we would, in general, consider to be hypocrisy, but it can still provide an advantage, especially here.
If that's the case, why would Disney's attorneys bother trying to cite Fair Use as an excuse?
> Disney’s attorney used fair use as a defense. The company argued that it could legally use Jackson’s copyrighted material since the broadcast was labeled as a documentary.
Besides, we have the estate’s claim that Disney’s attorney said “fair use,” but no information on whether that’s all the attorney said.
But you're right, it's second-hand at this point.
As an avid Pirate, I don't care if Disney made digital copies of Michael Jackson's music for use in a commercially successful documentary about Michael Jackson's life.
You just implicated yourself, and in a public forum no less. Alone this wouldn't be enough for legal action, but it could prove very useful, especially for showing intent for criminal prosecution. In any event, you never know how information can be used, and used against you.
Yes. It happens more than you think.
I think that I agree with their argument. Even if you play full Michael Jackson songs in your commercially successful documentary, I think this still could reasonably be construed as fair use. Maybe it would be a bit better if the clips were only 15-30 seconds, but the songs are relevant to the topic, and calling it a "documentary" is accurate and non arbitrary in this case.
If you were making an action film and you used my entire song for a 3 minute long car chase, and you made $500,000,000 in the movie, maybe you should pay me a small fee in my opinion as a nice gesture.
But to answer your ultimate question, I am very, very ardent pirate and I believe that literally nothing should be copyrighted.
I do not want to be sued by Disney and I do not want to sue Disney. If one of us profits immensely, it would be helpful to share the spoils, otherwise one might generally think of you as "a dick".
But the MJ side lawyers just want money, not to protect the integrity of his artwork.
From the 'You reap what you sow department.'I'm not sure which one they would prefer to have, though this will most certainly be settled out of court with some significant (for us) money changing hands.