RE: VERY interesting copyright article

Darryl Wiggers (Darryl.Wiggers@AllianceAtlantis.com)
Fri, 2 Feb 2001 08:40:39 -0800 (PST)

Here are the six main points of the copyright law as stated by the
Copyright Office at the U.S. Library of Congress:

_______________

... Section 106 of the 1976 Copyright Act generally gives the owner
of copyright the exclusive right to do and to authorize others to do
the following:

1) To reproduce the work in copies or phonorecords;

2) To prepare derivative works based upon the work;

3) To distribute copies or phonorecords of the work to the public by
sale or other transfer of ownership, or by rental, lease, or lending;

4) To perform the work publicly, in the case of literary, musical,
dramatic, and choreographic works, pantomimes, and motion pictures
and other audiovisual works;

5) To display the copyrighted work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and
pictorial, graphic, or sculptural works, including the individual
images of a motion picture or other audiovisual work; and

6) In the case of sound recordings, to perform the work publicly by
means of a digital audio transmission.

_______________

Now, does anyone remember the case of George Harrison and the
copyright violation he was charged with for his song My Sweet Lord?
His copyright violation had nothing to do with points 1, 3-6. It had
to do with point #2: "To prepare derivative works based upon the
work" because the song was determined to have been derived from the
song He's So Fine by The Chiffons. He took the basic melody
(unconsciously, but that didn't matter), create a whole new song,
copyrighted it in his own name, made money from the song, and didn't
give any money to the original creators of the melody.

Ever look at a film and say "Oh, Man! That was SOooo derivative!" I
never heard anyone say that when they saw Robocop on tv and the blood
spurts and cuss words were cut out. They usually said something
unprintable, but it had nothing to do with a copyright violation.
It's not like Mr. Cleanvideo is distributing these videos as "A Film
by Ray Lines" and failing to return money of the sale to the original
owners.

Semantics is EXTREMELY important. Especially when it comes to written
laws. That's why they are usually clearly defined. Words cannot mean what
you want them to mean. Or how you think they mean. The Copyright
Office defines it as follows: "A "derivative work" is a work based
upon one or more preexisting works, such as a translation, musical
arrangement, dramatization, fictionalization, motion picture version,
sound recording, art reproduction, abridgment, condensation, or any
other form in which a work may be recast, transformed, or adapted. A
work consisting of editorial revisions, annotations, elaborations, or
other modifications, which, as a whole, represent an original work of
authorship, is a "derivative work".

Curiously, filmmakers do homages -- or derivatives -- of other films
all the time and never seem to be nailed for it. Scary Movie is
probably the most extreme (derivative) example I've seen -- whole
scenes are virtually identical to all kinds of previously created
works, particularly Wes Craven's Scream -- but no one seems to
complain.

Now, having said all that, I located a section of the copyright that
suggests a violation in the case of Mr. Cleanvideo. The first section
appears below the six points in the copyright introduction:

"In addition, certain authors of works of visual art have the rights
of attribution and integrity as described in section 106A of the 1976
Copyright Act. For further information, request Circular 40,
"Copyright Registration for Works of the Visual Arts.""

So when you look at section 106A
(http://www.loc.gov/copyright/title17/92chap1.html#106a ) you'll find
this (edited) segment:

_______________

(a) Rights of Attribution and Integrity.- Subject to section 107 and
independent of the exclusive rights provided in section 106, the
author of a work of visual art-

(1) shall have the right-

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work
of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the
author of the work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be
prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall
have the right-

(A) to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to his or her
honor or reputation, and any intentional distortion, mutilation, or
modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and
any intentional or grossly negligent destruction of that work is a
violation of that right.

_______________

Sound convincing? The catch is, when you look for "further
information" in Circular 40 (it downloads as a pdf file) it
identifies what "visual art(s)" are covered by this -- and it does
not mention motion pictures, videos or anything of the sort. Here's
what it says:

_______________

Copyright protects original "pictorial, graphic, and sculp-tural
works," which include two-dimensional and three-dimensional works of
fine, graphic, and applied art. The following is a list of examples
of such works:

Advertisements, commercial prints, labels
Artificial flowers and plants
Artwork applied to clothing or to other useful articles
Bumper stickers, decals, stickers
Cartographic works, such as maps, globes, relief models
Cartoons, comic strips
Collages
Dolls, toys
Drawings, paintings, murals
Enamel works
Fabric, floor, and wallcovering designs
Games, puzzles
Greeting cards, postcards, stationery
Holograms, computer and laser artwork
Jewelry designs
Models
Mosaics
Needlework and craft kits
Original prints, such as engravings, etchings, serigraphs, silk
screen prints, woodblock prints
Patterns for sewing, knitting, crochet, needlework
Photographs, photomontages
Posters
Record jacket artwork or photography
Relief and intaglio prints
Reproductions, such as lithographs, collotypes
Sculpture, such as carvings, ceramics, figurines, maquettes, molds,
relief sculptures
Stained glass designs
Stencils, cut-outs
Technical drawings, architectural drawings or plans, blue-prints,
diagrams, mechanical drawings
Weaving designs, lace designs, tapestries

_______________

Of course the law usually favours the one with the most money --
regardless -- and unless Mr. CleanVideo can raise support from the
Christian community (and he probably will) he doesn't stand a chance
against the big guns of Hollywood.

My guess is Hollywood won't bother. They have little to gain except
to alienate the Christian community. I think it's more likely that
Hollywood will start making "clean" versions of their films available
on the video market -- if they determine its financially viable (i.e.
market research says there are enough Christians in the country who
would buy these versions). Universal already ensures their library is
stocked with TV-friendly versions (plus they also re-arrange the
whole story structure at times -- such as John Carpenter's The Thing)
so it shouldn't be difficult.

Remember, you heard it here first.

As for the suggestion of inserting PD footage into Disney films, well,
Jessica I think you know as well as I do that you might as well put a bullet
in your brain if you try to pull a stunt like that. The Mickey Mouse legal
department with rip you apart and lick your bones clean. In which case, Mr.
CleanVideo could definitely find himself in trouble if he messes with a
Touchstone flick. Whether he was legally in his rights to do so or not would
be beside the point.

Finally, here's something else to consider... what about cinemas that mess
with the projection? Private theatres have been known to splice out footage
they didn't approve of. Others have been known to mess with the sound levels
(as Mr. CleanVideo has). Still others (especially in my neighbourhood) have
forsaken projectionists altogether which has led to lots of burnt-out bulbs,
flickering bulbs, film stoppages, film interruptions and especially
mis-framings. Prints usually come with specific instructions as to what
ratio they should be projected (i.e 1.85:1, 1.66:1) and I've seen many
mistakes done with this. Are these "derivative" versions? Don't these
violate copyrights?

What about the unintentional defence? I don't think so. It didn't work for
George Harrison. But even if you could, one can easily cause havoc by suing
a theatre every time they mess up, and forcing them to prove whether or not
it was intentional.

We can dig deeper into this but I'm not being paid for legal research
so I'll probably stop here. But I think it's obvious that this matter
is not cut-and-dry and will require a court to sort this mess out.