9 ms·

Michael Jackson Estate Turns the 'Fair Use' Tables on Disney

126 points by okket 8y ago

handbanana 8y ago
“[I]f Disney’s position on fair use of the Estate’s copyrights were accepted one could create a two-hour documentary about the Star Wars franchise, by summarizing each film and using extensive clips from each film while playing the iconic Star Wars music in the background of interviews and narration, and all without permission from Disney." Great quote
- vkou 8y ago
  Isn't that what the (in)famous RedLetterMedia reviews of the Star Wars prequels did?
  - Obi_Juan_Kenobi 8y ago
    That matters in practice because you're less likely to stir up the ire of IP holders, but legally, the lack of commercialization of infringing work doesn't mean much.
    - dctoedt 8y ago
      > legally, the lack of commercialization of infringing work doesn't mean much. 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#FNSRC9 https://www.law.cornell.edu/supct/html/92-1292.ZO.html#FNSRC...
  - jerf 8y ago
    Yes. 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.
    - guhidalg 8y ago
      The question you’re bringing up is why do people consume entertainment. Is it for the memes, or is it for the artifact (like a movie)? 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.
    - bonesss 8y ago
      > "can you consume this work in lieu of the original?" 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.
  - empath75 8y ago
    Came here to say exactly that.
    - rublev 8y ago
      But you didn't say it, so why post?
  - crooked-v 8y ago
    Those did have the significant difference of not being aired on primetime TV for profit, though.
    - vkou 8y ago
      I am pretty sure someone in RLM makes a profit from these productions. If they don't, I'd be disappointed. 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.
      - jerf 8y ago
        I am unclear on why the parent comment is (was) being downvoted. It is relevant, and very likely true. Red Letter Media shows every sign to me of being one of those little 3-4 person companies living on YouTube revenue. The extensive movie reviews aren't all they do but it's certainly a non-trivial portion of their reputation they are monetizing.
  - bonesss 8y ago
    That is not even remotely close to what RedLetterMedia did... 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.
anoncoward111 8y ago
Wow, it's not every day that I agree with Disney, but here I am. 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.
- starmftronajoll 8y ago
  But perhaps as an avid pirate, you might care about the naked hypocrisy exhibited by Disney re: copyright, which is the crux of the Jackson estate's clever argument here (clever to the layperson, at least -- who knows if it will hold much weight if the case goes to trial).
  - norealidea 8y ago
    it comes to a point where Piracy isn't just about caring, but from old habits. What are they going to do if I don't pay their piracy fines? Find me and put me in jail for something they cannot prove even happened?
    - wahern 8y ago
      > something they cannot prove even happened 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.
    - redial 8y ago
      > Find me and put me in jail for something they cannot prove even happened? Yes. It happens more than you think.
  - wolco 8y ago
    As a pirate siding with Disney makes sense in this case and it could be used against Disney in future fases
- pavel_lishin 8y ago
maxlybbert 8y ago
I’ve read the complaint, and I doubt Disney’s legal department is concerned by this lawsuit. I’m going to predict that Disney has a blanket license for most of the music recordings through ASCAP or whatever other organization would normally handle those licenses. 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.
- pavel_lishin 8y ago
  > I’m going to predict that Disney has a blanket license for most of the music recordings through ASCAP or whatever other organization would normally handle those licenses. 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.
  - maxlybbert 8y ago
    I’m no expert, but I doubt attorneys generally do a lot of research when answering phone calls. It wouldn’t surprise me if the attorney answering the call didn’t check with anyone involved in making the show before opening their mouth. 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.
    - pavel_lishin 8y ago
      I would wager attorneys are very careful when opening their mouth over the telephone. But you're right, it's second-hand at this point.
AdmiralAsshat 8y ago
Disney only cares about the law when it profits them. Remember that they rose to fame by using stories that were in the public domain and exempt from copyright, then lobbied to extend their own copyright indefinitely.
- superflyguy 8y ago
  They also used Stravinsky's music and didn't pay him.
  - wristmittens 8y ago
    Sources? Copyright issues back then were a bit tricky. 28 years with mandatory registration, and so Stravinsky's Rite Of Spring (1913) is around the line of 27 years to Disney's Fantasia (1940), and if Stravinsky didn't register it, then the only organization they'd have to pay is the Philadelphia Orchestra, depending on when it was recorded... https://en.wikipedia.org/wiki/History_of_copyright_law_of_the_United_States https://en.wikipedia.org/wiki/History_of_copyright_law_of_th... https://www.imdb.com/title/tt0032455/soundtrack?ref_=tt_trv_snd https://www.imdb.com/title/tt0032455/soundtrack?ref_=tt_trv_...
    - fzzzy 8y ago
      What does that have to do with the simple statement of fact “they didn’t pay him”? 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.
      - SamReidHughes 8y ago
        It has to do with the relevance of that fact.
- chimeracoder 8y ago
  > Remember that they rose to fame by using stories that were in the public domain and exempt from copyright, then lobbied to extend their own copyright indefinitely. And now try to claim exclusive rights over those same stories, no less.
baldfat 8y ago
I hope Disney wins. The 1998 Copyright Extension is over this year and WELL POSSIBLY we could get things back into public domain again!!! 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 https://boingboing.net/2018/01/08/sonny-bono-is-dead.html
- cwkoss 8y ago
  Cost should rise proportionally to length of copyright to disincentivize retaining copyrights indefinitely. Ex. First 10 years - free Second 10 years - $1k/year Third 10 years - $10k/year Fourth 10 years - $100k/year and so on...
  - waqf 8y ago
    So under your system, big blockbuster productions would have the longest copyright term. 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.
    - true_religion 8y ago
      I think it's done this way as a compromise to the current copyright holders. 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.
gremlinsinc 8y ago
Did they mention Napster enough times in the article? Each time the article lost more credibility with me and felt more like buzz feed.
- pnevares 8y ago
  The line about Napster references, and later directly quotes, a section from the complaint PDF (page 6, section 16).
  - ghostbrainalpha 8y ago
    Also you are reading a blog on the "Torrent Freak" website... so they may be zooming in on the part of this story that resonates with this author and typical readership.
- gremlinsinc 8y ago
  Yeah, but they repeated that line like 5 times. It was annoying to read and felt like SEO positioning.
daemin 8y ago
So if Disney win then they lose all their other piracy cases, but if they lose then they win their other cases? 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.
tracker1 8y ago
One thing I miss from slashdot was the "from the ... department" or similar. In this case: From the 'You reap what you sow department.'

126 points by okket 8y ago

“[I]f Disney’s position on fair use of the Estate’s copyrights were accepted one could create a two-hour documentary about the Star Wars franchise, by summarizing each film and using extensive clips from each film while playing the iconic Star Wars music in the background of interviews and narration, and all without permission from Disney." Great quote

vkou 8y ago
Isn't that what the (in)famous RedLetterMedia reviews of the Star Wars prequels did?
- Obi_Juan_Kenobi 8y ago
  That matters in practice because you're less likely to stir up the ire of IP holders, but legally, the lack of commercialization of infringing work doesn't mean much.
  - dctoedt 8y ago
    > legally, the lack of commercialization of infringing work doesn't mean much. 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#FNSRC9 https://www.law.cornell.edu/supct/html/92-1292.ZO.html#FNSRC...
- jerf 8y ago
  Yes. 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.
  - guhidalg 8y ago
    The question you’re bringing up is why do people consume entertainment. Is it for the memes, or is it for the artifact (like a movie)? 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.
  - bonesss 8y ago
    > "can you consume this work in lieu of the original?" 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.
- empath75 8y ago
  Came here to say exactly that.
  - rublev 8y ago
    But you didn't say it, so why post?
- crooked-v 8y ago
  Those did have the significant difference of not being aired on primetime TV for profit, though.
  - vkou 8y ago
    I am pretty sure someone in RLM makes a profit from these productions. If they don't, I'd be disappointed. 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.
    - jerf 8y ago
      I am unclear on why the parent comment is (was) being downvoted. It is relevant, and very likely true. Red Letter Media shows every sign to me of being one of those little 3-4 person companies living on YouTube revenue. The extensive movie reviews aren't all they do but it's certainly a non-trivial portion of their reputation they are monetizing.
- bonesss 8y ago
  That is not even remotely close to what RedLetterMedia did... 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.

anoncoward111 8y ago

Wow, it's not every day that I agree with Disney, but here I am. 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.

starmftronajoll 8y ago
But perhaps as an avid pirate, you might care about the naked hypocrisy exhibited by Disney re: copyright, which is the crux of the Jackson estate's clever argument here (clever to the layperson, at least -- who knows if it will hold much weight if the case goes to trial).
- norealidea 8y ago
  it comes to a point where Piracy isn't just about caring, but from old habits. What are they going to do if I don't pay their piracy fines? Find me and put me in jail for something they cannot prove even happened?
  - wahern 8y ago
    > something they cannot prove even happened 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.
  - redial 8y ago
    > Find me and put me in jail for something they cannot prove even happened? Yes. It happens more than you think.
- wolco 8y ago
  As a pirate siding with Disney makes sense in this case and it could be used against Disney in future fases
pavel_lishin 8y ago

maxlybbert 8y ago

I’ve read the complaint, and I doubt Disney’s legal department is concerned by this lawsuit. I’m going to predict that Disney has a blanket license for most of the music recordings through ASCAP or whatever other organization would normally handle those licenses. 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.

pavel_lishin 8y ago
> I’m going to predict that Disney has a blanket license for most of the music recordings through ASCAP or whatever other organization would normally handle those licenses. 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.
- maxlybbert 8y ago
  I’m no expert, but I doubt attorneys generally do a lot of research when answering phone calls. It wouldn’t surprise me if the attorney answering the call didn’t check with anyone involved in making the show before opening their mouth. 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.
  - pavel_lishin 8y ago
    I would wager attorneys are very careful when opening their mouth over the telephone. But you're right, it's second-hand at this point.

AdmiralAsshat 8y ago

Disney only cares about the law when it profits them. Remember that they rose to fame by using stories that were in the public domain and exempt from copyright, then lobbied to extend their own copyright indefinitely.

superflyguy 8y ago
They also used Stravinsky's music and didn't pay him.
- wristmittens 8y ago
  Sources? Copyright issues back then were a bit tricky. 28 years with mandatory registration, and so Stravinsky's Rite Of Spring (1913) is around the line of 27 years to Disney's Fantasia (1940), and if Stravinsky didn't register it, then the only organization they'd have to pay is the Philadelphia Orchestra, depending on when it was recorded... https://en.wikipedia.org/wiki/History_of_copyright_law_of_the_United_States https://en.wikipedia.org/wiki/History_of_copyright_law_of_th... https://www.imdb.com/title/tt0032455/soundtrack?ref_=tt_trv_snd https://www.imdb.com/title/tt0032455/soundtrack?ref_=tt_trv_...
  - fzzzy 8y ago
    What does that have to do with the simple statement of fact “they didn’t pay him”? 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.
    - SamReidHughes 8y ago
      It has to do with the relevance of that fact.
chimeracoder 8y ago
> Remember that they rose to fame by using stories that were in the public domain and exempt from copyright, then lobbied to extend their own copyright indefinitely. And now try to claim exclusive rights over those same stories, no less.

baldfat 8y ago

I hope Disney wins. The 1998 Copyright Extension is over this year and WELL POSSIBLY we could get things back into public domain again!!! 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 https://boingboing.net/2018/01/08/sonny-bono-is-dead.html

cwkoss 8y ago
Cost should rise proportionally to length of copyright to disincentivize retaining copyrights indefinitely. Ex. First 10 years - free Second 10 years - $1k/year Third 10 years - $10k/year Fourth 10 years - $100k/year and so on...
- waqf 8y ago
  So under your system, big blockbuster productions would have the longest copyright term. 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.
  - true_religion 8y ago
    I think it's done this way as a compromise to the current copyright holders. 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.

gremlinsinc 8y ago

Did they mention Napster enough times in the article? Each time the article lost more credibility with me and felt more like buzz feed.

pnevares 8y ago
The line about Napster references, and later directly quotes, a section from the complaint PDF (page 6, section 16).
- ghostbrainalpha 8y ago
  Also you are reading a blog on the "Torrent Freak" website... so they may be zooming in on the part of this story that resonates with this author and typical readership.
gremlinsinc 8y ago
Yeah, but they repeated that line like 5 times. It was annoying to read and felt like SEO positioning.

daemin 8y ago

So if Disney win then they lose all their other piracy cases, but if they lose then they win their other cases? 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.

tracker1 8y ago

One thing I miss from slashdot was the "from the ... department" or similar. In this case: From the 'You reap what you sow department.'