Thursday, January 14, 2010

It's a Wonderful Remix

Eugene Jarecki used It's a Wonderful Life to promote the idea of moving one's money to community banks. Stephen Colbert showed Jarecki's video and then a response to Jarecki's video also using footage from the film, which argued that Mr. Potter should have been the hero and not the villain. It's a Wonderful Life, of course, was not renewed by the studio; it is only covered by copyright rights because of the renewed rights in the underlying story--so it may well be the case that neither video took anything protectable from the work still protected by copyright law. The substantial similarity/de minimis analysis would have to compare the remixes to the written story, and without the similarity of images to rely on, there might not be anything there even before getting to a fair use analysis. (Both the Rear Window and Newton v. Diamond cases might be of use here, the former in emphasizing how much of a movie is distinct from the underlying story and the latter in discussing how to deal with similarity that comes from elements of a work that a defendant has the right to use when those elements are inherently intertwined with copyright-protected elements.)

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