RE: [Videolib] film stills for publication

Jed Horovitz (JedH@internetvideoarchive.com)
Wed, 16 Feb 2005 11:31:31 -0500

Of course the cases did not give 'license' to any other use. That is not
how the law works. They simply stated that this particular use was fair.
People continue to license because a. their use is not fair, b. they don't
want to bother proving their use is fair, c. they have to license because
they can't get distribution otherwise (just like the book publishers
referred to earlier) even if their use is fair, d. they are ignorant of the
doctrine of fair use, e. fear, f. complicity with the copyright
expansionists.

Any lawyer will tell you that everything comes with a risk...even free
speech.

Jed

-----Original Message-----
From: videolib-bounces@library.berkeley.edu
[mailto:videolib-bounces@library.berkeley.edu]On Behalf Of Jessica
Rosner
Sent: Wednesday, February 16, 2005 10:12 AM
To: videolib@library.berkeley.edu
Subject: Re: [Videolib] film stills for publication

Jed
I am SURE that the case did not give license to use clips from films as
opposed to trailers in film biographies. If it had it would have been BIG
news as it would more or less have eliminated the need to license clips in
biographies and other "transformative" types of documentaries. A & E ,
Lifetime, independent documentary bios etc. routinely pay big bucks for any
STANDARD clips in their biographies and they would hardly be doing so if
the law were otherwise. Clip use from trailers has long been a favorite of
doc directors & producers as so far it has escaped the legal machinations
of studios etc. If you can find any case or instance in which a clip was
used and accepted as "fair use' that was NOT from a trailer anywhere in the
US , let me know

Proud Resident of a BLUE STATE

Jessica Rosner
Kino International
333 W 39th St. 503
NY NY 10018
jrosner@kino.com
212-629-6880

> From: "Jed Horovitz" <JedH@internetvideoarchive.com>
> Reply-To: videolib@library.berkeley.edu
> Date: Wed, 16 Feb 2005 08:54:41 -0500
> To: <videolib@library.berkeley.edu>
> Subject: RE: [Videolib] film stills for publication
>
> Here are the cites. While you are correct that one of the cases involved
> bits from a trailer, the issue was not that the trailer was not
registered,
> but that it was a Fair Use and thus would have applied equally had the
> material been lifted directly from the movie. In another (sad) case, in
> SDNJ, the court actually ruled that the copyright protection in a movie
> 'devolves' to the trailer and thus you don't need to register trailers,
but
> that would not change the outcomes below. Jed
>
> Hofheinz v. A&E Television Networks (S.D.N.Y. 2001),
> The Court considered whether A&E's use of clips from a movie trailer for a
> copyrighted film for a biography of actor Peter Graves was fair use. The
> biography narrator introduced the movie clip as outdated and "campy". The
> Court found that the biography was transformative because use of a movie
> trailer clip for a "B" movie "was not shown to recreate the creative
> expression reposing in plaintiff's film." Its purpose was to "enable the
> viewer to understand the actor's modest beginnings in the film business."
> http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07249.PDF
>
> Hofheinz v. AMC Productions (S.D.N.Y. 2001)
> Plaintiff sued defendant for its use of excerpts one of her low budget
> science fiction "alien" films in a 1997 program. Defendant used the clips
> from the alien film in a documentary-style program that identified the
> common themes and political contexts of alien visitation films. The clips
> were used for the transformative purpose of enriching the commentary on
the
> 'alien visitation genre' and did not constitute the heart of the
copyrighted
> work. Defendant's program was not a substitute for viewing the entirety of
> the copyrighted film, nor did it capture its essence. Since defendant's
> program was transformative, defendant's profit motive did not alter the
> analysis of the first fair use factor. The balance of the fair use factors
> were in defendant's favor and the Court found that defendant's use of
> plaintiff's alien film constituted fair use.
> http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/01-07249.PDF
>
> -----Original Message-----
> From: videolib-bounces@library.berkeley.edu
> [mailto:videolib-bounces@library.berkeley.edu]On Behalf Of Jessica
> Rosner
> Sent: Tuesday, February 15, 2005 3:52 PM
> To: videolib@library.berkeley.edu
> Subject: Re: [Videolib] film stills for publication
>
>
> I would love info on the A &E case as that would be BIG news if one could
> use film clips free of charge in documentaries. I think it is possible
you
> are thinking of the issue of using clips from TRAILERS in documentaries
has
> been done for a long time as a way of avoiding paying for "real" clips.
I
> know some studios attempted to crack down on the practice but no idea
where
> it stands. The theory was that unlike the films the trailers were not
> copyrighted and intended as promotion. It is very likely that the same
> would apply to PUBLICITY stills but I don't see how it could apply to
either
> direct clips or snatches. Anyway if you have a link to the case or any
> articles about it, please post it
>
> Jessica
>
>
> Proud Resident of a BLUE STATE
>
> Jessica Rosner
> Kino International
> 333 W 39th St. 503
> NY NY 10018
> jrosner@kino.com
> 212-629-6880
>
>> From: "Jed Horovitz" <JedH@internetvideoarchive.com>
>> Reply-To: videolib@library.berkeley.edu
>> Date: Tue, 15 Feb 2005 15:20:40 -0500
>> To: <videolib@library.berkeley.edu>
>> Subject: RE: [Videolib] film stills for publication
>>
>> I too don't know of a commercial publisher who will invest without a
>> clearance in writing. That doesn't make it legally required though.
>>
>> The A&E Biography cases in NY established that using clips in a
> documentary
>> about the film or the genre or an actor in a film was a fair use. How
> could
>> the use of a still in a book about the film or the genre or an actor not
> be?
>>
>> I think that publishers are part of the same copyright cartel and don't
> want
>> to rock the boat. As long as they can pass the effort and expense off on
>> the author, why should they?
>>
>> Jed
>>
>> -----Original Message-----
>> From: videolib-bounces@library.berkeley.edu
>> [mailto:videolib-bounces@library.berkeley.edu]On Behalf Of Jessica
>> Rosner
>> Sent: Tuesday, February 15, 2005 2:03 PM
>> To: videolib@library.berkeley.edu
>> Subject: Re: [Videolib] film stills for publication
>>
>>
>>
>>
>>> From: "Jed Horovitz" <JedH@internetvideoarchive.com>
>>>
>>> As the (gasp) producer of "Rock and Roll High School Forever" and
>> uncredited
>>> writer of
>>> "Slumber Party Massacre Part II" I can only say, 'It is about time
>> somebody
>>> did a book on this important genre.' Heh, I had to eat.
>>>
>>> Seriously, I think the best think to do is contact the producers because
>>> they will mostly be glad to provide stills.
>>>
>>> If they can't be found, he should document that and try pulling images
>> from
>>> video. Sounds like a fair use to me.
>>>
>>> Jed
>>
>> Just wondering Jed does anything NOT sound like fair use to you ? I
> really
>> have not kept up with the law on this but it is my understanding that
>> publishers require written clearance to cover their backs. The only law
> case
>> I followed was very odd one in which a very insistent rights holder sued
> and
>> won a judgement against VARIETY of all places for the unauthorized use of
> a
>> LAUREL & HARDY image. It is Kino's policy never to charge for use of
> stills
>> but I gather the going studio rate is around $250 per image. There was a
>> famous/infamous article that asserted that pulling images from a film
> WOULD
>> be covered but using standard issue publicity images would not.
Personally
> I
>> think it is the other way round but other than the L& H thing
>> ( which was publicity image) I have not heard of any cases.
>> Bottom line is that publishers are nervous so they want written
permission
>> which in the case of the movies your friend is trying to get, may be a
> real
>> pain in the ass
>>
>> jessica
>>
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