Monday, June 06, 2016

Two older cases finding fair use of film clips

Equals Three, LLC v. Jukin Media, Inc., 139 F. Supp. 3d 1094 (C.D. Cal. 2015)| 
Just showed up in Westclip; another datum for the “video clip usage can be fair use” pile.  Jukin amasses a library of user-generated internet video clips to license on the clip creators’ behalf.  Equals Three makes short humor programs which it broadcasts via YouTube.  “Its humor programs typically involve a host who gives an introduction, shows parts of video clips (which are usually shown in edited form and inset within a decorative graphical frame) and remarks about the events and people presented in the clip.”  Equals Three added “text, graphics and animation, sound effects, voice overs, and video clips … to enhance and develop the story.”  
Equals Three used 19 clips from Jukin’s videos without paying.  These were videos  “featuring either a slapstick-style mishap, an animal in a humorous situation, or simply a cute video of an animal (such as a dachshund chasing a crab on the beach).”
The court quoted Campbell’s distinction between parody and satire and understandably declared itself puzzled about how to decide whether the Equals Three videos were parodies.  Jukin’s videos record events that “typically have an unplanned or spontaneous aspect to them—such as an attempted boat stunt failing or a child having an unexpected reaction to the news of his mother’s new pregnancy.” “It is difficult to say whether Equals Three’s episodes, which undisputedly use graphics and narration to tell jokes about the events depicted in the videos, criticize these videos—which were themselves made to serve the purpose of humor and entertainment—or simply point out their inherent humor.”
However, even if the Equals Three videos weren’t parodies, the episodes still commented on or criticized the Jukin videos by directly responding to them and highlighting humorous reactions to them.  The host’s narration “makes comments about Jukin’s videos that highlight their ridiculousness by creating fictionalized narratives of how the events transpired, using similes, or by directly mocking the depicted events and people.”  For example, one Jukin video shows footage of a crane first failing to remove, then removing, a milk jug from a black bear’s head.  The Equals Three video showed some clips from the Jukin video, and the host comments that “playing the crane game at Chuckie Cheese’s wasn’t a waste of time” and compares using a crane to remove a jug from a bear’s head to “fishing with a hand grenade.”  Another Jukin video showed a groom running while carrying his (presumed) bride, tripping, and falling on her. Equals Three showed the actual trip and fall multiple times “with different graphics and commentary interspersed. The host … describes the incident as an example of why you shouldn’t wait to have sex until marriage because you get ‘way too excited.’”
The videos were the “butt” of Equals Three’s jokes. “Thus, the jokes, narration, graphics, editing, and other elements that Equals Three adds to Jukin’s videos add something new to Jukin’s videos with a different purpose or character.”  The court distinguished the videos (save one) from cases in which “the addition of minimal narration, an introduction, or text did not change the essential character of the original work.”  Other cases, such as the plaintiff’s win in L.A. News Service (featuring footage of the Reginald Denny beating) also indicate that, if the footage itself were the news, factor one would favor fair use.  “This distinction illustrates the difference between using Jukin’s videos to comment on the videos themselves and using Jukin’s videos gratuitously to illustrate a broader message.”  Transformativeness outweighed commerciality.
The exception was one video showing the first person to buy an iPhone 6 in Perth dropping the phone. “According to Equals Three, it used this footage for the purpose of making two points: (1) ‘don’t be first at shit’; and (2) Apple Inc.’s method of packaging iPhones at the top of the box is absurd.” The court found that these were “two general, broad points that were not directly aimed at criticizing or commenting on the video,” and thus not transformative.  I admit I’m not sure what the difference is here—this seems like the court in Cariou singling out five of Prince’s collages.
Nor did Equals Three’s resistance to licensing after Jukin demanded a license fee weigh against bad faith.  “If using a song after requesting and being denied a license [Campbell] does not show bad faith, then neither does failing to obtain a license and continuing to use footage after being sent a demand letter.”  Likewise, the court didn’t think that Equals Three’s alleged free riding on Jukin’s hunt for the best viral videos was bad faith.
Thus, all but one of the videos were highly transformative.  The Jukin videos were creative, but they were also previously published, so factor two carried “slight weight.”  The Equals Three videos took no more than necessary, even though they arguably took the heart of the Jukin videos: they had to “convey enough of the events to allow the host’s jokes, comments, and criticisms to make sense to the viewer and resonate.” Factor three favored fair use.
Factor 4: Only market substitution counts, and there’s no cognizable derivative market for criticism. The court rejected Jukin’s argument that copying the videos shortly after publication was especially harmful, because Jukin’s VP’s declaration gave no foundation for this assertion.  “Moreover, even assuming arguendo that the videos are more valuable shortly after publication, focusing on harm from Equals Three’s failure to pay a license risks circular reasoning—if Equals Three’s use is fair then no license fee is required by it or by other similar users.”  There was also no evidence that any viewers actually watched Equals Three’s episode rather than Jukin’s video, and no evidence to support Jukin’s claim that “a potential licensee is less likely to license a video if they think others are copying it for free.”  The court found that substitution wasn’t completely implausible; “the Court can imagine a fine line between the demand for the humorous original and the humorous new work commenting thereon.” But with market harm still hypothetical, factor four didn’t favor either party.
Thus, Jukin’s motion for summary judgment on fair use was granted as to the one iPhone video and denied as to the rest.
Nat’l Ctr. for Jewish Film v. Riverside Films LLC, No. 5:12–CV–00044, 2012 WL 4052111, at *3 (C.D.Cal. Sept. 14, 2012)
Mentioned in the Jukin case; I’m putting it here to make sure I add it to the list of fair use film cases.  NCJF is a nonprofit that archives and distributes films that promote Jewish heritage. Riverside released a feature-length documentary, Sholem Aleichem: Laughing in the Darkness, about the 19th century Yiddish author “whose works have remained a cultural touchstone for Jews across the world.  More than a mere biography, the film examines the last 150 years of Jewish history, covering the transition from the traditional, religiously dominated world of shtetls to modern secular life.”
Riverside allegedly used clips of varying lengths from four of Plaintiff’s copyrighted films: (1) Yiddle with His Fiddle; (2) A Letter to Mother; (3) Tevye the Milkman; and (4) Jewish Luck.  [Disputes about ownership omitted.]
Factor one: NCJF argued that Riverside merely added a voiceover to the original scenes depicting shtetls, and therefore their use was not transformative.  The court disagreed; the “voiceovers, editing, and overall production” added something new.  Riverside used short clips in a montage with other scenes. 
Even the longer video clips—e.g., the scene in Tevye depicting the protagonist’s struggles with his daughter’s rejection of the Jewish faith—are buttressed with other scenes and commentary that explain the relevance and background of the video clip. Scholarly commentary runs throughout Sholem Aleichem and does more than mere narration. This documentary aims to teach and enlighten its audience about Aleichem’s work and Jewish history.
Despite the commercial nature of the use, factor one favored Riverside. 
You know the rest: Factor two: fictional films, but already published.  (Where all that NCJF arguably owned was the English subtitles, “the creative element is severely lacking, as it is very easy with today’s technology to translate the dialogue and reproduce the English subtitles.”)  Slightly favored Riverside.  Factor three: tiny bits. 22 seconds were from Yiddle, 0.4% of its run time; 41 seconds were from Letter, 0.6% of its run time; 13 clips were from Jewish Luck totaling 37 seconds, 0.6% of its run time; clips from Tevye totaled 1 minute and 24 seconds, 1.5% of its run time. This was minimal, both quantitatively and qualitatively. The depictions of shtetl life were “background scenes, mere transitions between other, more important scenes,”  and the subtitles were ancillary.
Factor four: use of the clips as background for scholarly commentary wouldn’t substitute for the full-length films.  In fact, the film likely caused newfound interest in the older films.
The court treated bad faith as a separate issue that might preclude fair use.  NCJF claims that Riverside contacted NCJF before using the clips, got copies from NCJF, then used the clips without paying NCJF’s licensing fee of $12,000, modest for a film that made $1 million in revenues.  However, the court found Riverside’s acts reasonable, “especially in the light of Plaintiffs’ tenuous copyrights and Defendants’ belief in its fair-use rights,” and not in bad faith.

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