bob tarantino

Entertainment, Media and IP Law 03.25.09

Peeking behind the curtain:  Michael Geist comments on the decision of an Ontario judge to order the disclosure of all information relating to discussion board participants by the owners of the website.  Geist's conclusion: "I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met."

The grandest licensing scheme of them all:  Geist (him again) reports and comments on the Songwriters Association of Canada proposal to create "a new right of remuneration for music file sharing in return for the consumer freedom to share an unlimited amount of music across all platforms".  The most interesting part of the initiative is its potential for extension to video works as well, since ACTRA has evidently expressed some tentative openness to considering the issue.

Bloodsport:  Barak Y. Orbach has written a paper about the origins of US film censorship - which oddly enough apparently has its origins in films of boxing matches in the late 1800s (ht: Media Law Prof Blog).  Download the paper here.

The most painful headline ever:  In reporting on the news that a Toronto firm has been tasked with licensing and protecting the trade-mark interests of Bob Marley's estate, the CBC elected to use this headline: "Toronto firm gets up, stands up for Bob Marley trademark rights".  Ow.  (Oh, and shouldn't the CBC style guide prefer the Canadian iteration "trade-mark" to the American "trademark"?)

"It costs money even to talk to the copyright holders": Everybody else has already talked about Sita Sings the Blues and its innovative release strategy, but I would be seriously remiss if I didn't mention it as well.

Consistently in the middle of the pack:  The Canadian Intellectual Property Office released its 2007-2008 Annual Report a few weeks ago.  9,321 copyright applications were received, compared to over 47,000 trade-mark applications, 5,174 industrial design applications and 0 (count 'em) integrated circuit topography applications.

The Salmon Arm Salute

Dean Beeby at the CP wrote an excellent, nicely detailed story about the Ontario Film Review Board, focusing on its recent decision regarding the social crudeness of a depiction of someone "flipping the bird".  The OFRB's own (rather informative) website is here.

The board, which classifies all mainstream films in the province, amended its manual so that the rude salute now will help knock a film from a General (G) designation into the Parental Guidance (PG) category.

The gesture, sometimes called “flipping the bird” or simply “the bird,” is rated the equivalent of an animal humping someone's leg, according to the manual's section on assessing the psychological impact of mainstream films.

And the “finger” is now classified as one notch more obnoxious than “a little bit of farting, belching” in the crude behaviours category, in the latest edition of the manual, obtained by The Canadian Press under Ontario's freedom-of-information law.

The gesture, though, is considered less obnoxious than a teenager vomiting and his friend urinating onto bystanders, say the arcane guidelines in the 32-page document.

"overlapping laws and sky-high costs"

As previously noted, few people are as finely attuned to the mindnumbing complexities and costs of copyright clearance issues as documentary producers.  The issue is still a hot one:

Documentary filmmakers say it's getting tougher to make independent productions because of growing restrictions on what images and sounds they can use.

The battle over rights issues was a hot topic of discussion at Toronto's Hot Docs Film Festival, where a session last week about fair use was packed with filmmakers from around the world.

Many filmmakers fear they'll soon no longer be able to fully document our pop culture and mixed media age because of the high cost of using footage and sound, and the consolidation of rights to this material in a few hands.

Too much can be made of the "consolidation" issue - it wouldn't matter whether the rights are held by one corporate entity or a million individual people (if anything, the former would at least be more efficient from a clearance standpoint) - but it all speaks to the need for a robust fair use mechanism that is embedded in the structure of the copyright regime.  As the article notes, this is not just a concern for Canadians:

Italian filmmaker Marco Visalberghi says overlapping laws and sky-high costs have made documentary creation difficult in the European Union.

... As a result, directors are abandoning anything with a hint of pop culture content, Visalberghi told fellow filmmakers in Toronto.

As a reminder, the Documentary Organisation of Canada's "white paper" on copyright clearance issues provides some excellent background information on the issue (with the caveat, mentioned in my earlier post, that they seem overly fond of throwing around the word "censorship" when it comes to clearance matters).

Another Salvo in Charlie Wilson's War?

Arthur Kent (latterly the "Scud Stud") is "suing the makers of Charlie Wilson's War after footage Mr. Kent produced for a 1986 BBC news program about the Soviet Union's conflict in Afghanistan appeared in the 2007 Universal Studios movie without his permission".  It would be interesting to see the claim, as it appears that Kent is not only requesting monetary damages, but an injunction against further exploitation of the film - at least until it is altered to "eliminate anything associated with him". 

A number of questions arise from the brief description provided by the news report:

• who owns copyright in the footage used in the movie?  I'm not familiar with how the BBC handles copyright from independent producers (assuming Kent was not a BBC employee at the time he created the footage), but I would have thought the BBC would have acquired copyright in any materials which were produced at its behest.

• is Kent asserting a moral rights claim (perhaps not - the story seems to indicate that the claim is being brought in Los Angeles, and US copyright law provides exceedingly week protection for moral rights)? The report states that Kent "claims that his footage was re-edited and taken out of context ... images from Mr. Kent's documentary appear without their accompanying narration, and at other times narration is lifted from the documentary and is heard over other footage" - even if Kent does not own copyright in the footage in question, that would seem to be ripe territory for a moral rights claim, as distinct from a copyright claim.

In any event, this is a classic "errors and omissions" claim for a motion picture - a timely reminder of the importance for counsel to play an ongoing role in vetting all materials which are incorporated in a film project.