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Occupy Film Threatens Lawsuit

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  1. I cut multiple footage sources together from publicly available videos to new audio to make "re-edit" or "remix"/"mash-up" videos, as do countless others. Legal action has recently been threatened against me for doing this, not by a major Hollywood studio, or a super protective indie filmmaker, or even a giant greedy record label, but from a producer on "99%: The Occupy Wall Street Collaborative Film" ( www.99percentfilm.com ).
  2.  
  3. Re-edit Videos in question:
  4. Occupy - Still Free (6 month anniversary)
  5. http://www.youtube.com/watch?v=HIYMLR_DGWU
  6. Occupy - Get Involved (1 year anniversary)
  7. http://www.youtube.com/watch?v=lnnz8aF3LTM
  8.  
  9. Copyrighted Material in question:
  10. http://vimeo.com/33083682
  11.  
  12. What are your thoughts? Regardless if these videos qualify for a Fair Use exception, what are your opinions on re-using copyrighted media, specifically for a global movement geared towards free access, sharing, and collaboration, especially when said copyrighted material is aggressively protected through legal means to ensure maximum marketability of a commercial product created from said movement? What's your impression on how they have gone about pursuing this copyright claim and its enforcement? Does your opinion change because the film is being produced through crowdsrouced funding?
  13.  
  14. My correspondence with the producer to-date has been copied below.
  15.  
  16. --------------------------------
  17.  
  18. Hi Jordan,
  19.  
  20. You're using our exclusive footage (from 99% - The Occupy Wall Street Collaborative Film) in your Occupy promo music video.  Not only is this problematic in that it hurts our film when people use our footage, but several of the shooters are opposed to their footage being used in this way.  
  21.  
  22. Despite the fact that you did not first ask us if you could use our material, I'm going to extend the courtesy to you of first asking you to remove this video from any outlets where it's been posted, most definitely including Vimeo and youtube, until you have removed our footage.  Our footage includes work for Josh Johnson, Ed David, Lily Henderson, and anything you took from our trailer on our vimeo page.  
  23.  
  24. This is a very serious matter to us, and I would ask that you reply within three business days to my request to remove our footage from any and all of your videos, and to take them offline until that has been accomplished.
  25.  
  26. Regards,
  27. Audrey Ewell
  28. --
  29. Field Pictures
  30. www.99percentfilm.com
  31.  
  32. ------------------------------
  33.  
  34. Hi Audrey,
  35.  
  36. No video is named or linked in your email, and it was sent to the Occupy Victory Media Tour. OVMT has released no videos containing anyone else's footage but those of the OVMT filmmakers. For the purposes of this email, I have to make the assumption you are referring to one of the two Occupy "re-edit" videos released under Scope Studios' imprint Framed Crooks: "Occupy - Still Free" and "Occupy - Get Involved." The rest of this email will be written under this presumption.
  37.  
  38. Thank you for your professionalism and courteousness, as this is a very serious matter for me as well. I have full respect for the efforts of the filmmakers dedicated to your project. Similarly, I have my own projects, based on my own principles (I believe shared with much of the Occupy movement), that I intend to defend culturally, and legally if necessary, and I hope they can likewise be respected. The production of those videos is not meant to detract from your efforts in any way. In fact, efforts were made to direct attention to those whose work was utilized for those pieces, including identifying the sources of individual shots as best as possible for commercial documentaries interested in properly licensing the footage from its original owners.
  39.  
  40. I could have been more polite, and asked to license these clips for free, but in keeping with Occupy principles of the commons, I am in agreement that that which is produced of the movement, socially belongs collectively to the movement, whether it was made for or by the movement or not. The lack of permission request was not meant as an inconsiderate snub, but a conscious enactment of the principled cultural production model established by Occupy, which I feel also must be defended. In pursuit of this, I have offered a sample Fair Use Analysis that will hopefully illuminate the reasoning behind the videos' production, as well as demonstrate the basis upon which I understand what Scope Studios has released to be entirely defensible against legal claims of alleged copyright infringement. I do not mean to infer you or anyone involved with 99% - The Occupy Wall Street Collaborative Film (herein: "The 99% Film") need a refresher on fair use and copyright law, but, just as I'm sure you must send out "cease and desist" notices to legally demonstrate an effort to defend the copyright of your work, I must run-down this increasingly known doctrine to demonstrate that these videos were created with careful consideration to established legal defense against copyright infringement accusations, and along accepted best practices for the creative culture, medium, and mode of expression of which they are a part.
  41.  
  42. -----------------------------
  43. FAIR USE ANALYSIS
  44.  
  45. This analysis is based largely on the legal-cultural principles identified and codified by the legal scholars on the Code of Best Practices Committee (CBPC) of the Center for Social Media at the American University School of Communication available here ( http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-online-video ), which "serves as evidence of commonly held understandings--some drawn from the experience of other creative communities (including documentary filmmakers) and supported by legal precedents, and all grounded in current practice of online video." It will look at the primary legal considerations in establishing whether the unlicensed use of original copyrighted work is legally protected under the Fair Use doctrine: the four factors for consideration of fair use as outlined in 17 U.S.C. ยง 107 by the Copyright Act of 1976 (paraphrased as The Nature of the Use, The Nature of the Work Used, The Extent of the Use, and The Economic Effect of the Use), the two key questions returned to "again and again" by fair use-ruling judges as identified by the CBPC (Transformative vs. Derivative and Appropriateness of Kind/Amount), and the ever-present consideration of Good Faith in the use of the copyrighted work.
  46.  
  47. The two "re-edit" videos in question fall well within the identifiable internet "remix" or "mash-up" sub-genres of "fan tribute," "memorialization of world events/cultural phenomena," and "critique." These videos utilize a variety of video sources and a collection of unassociated audio tracks to commemorate six-month and one-year spans of related, historic public events, documented by those present, and repurposes them through juxtapositions, careful editing, interstitial titles, subtitles, and separate audio content (mostly decades removed from the video content) to wholly transform these various pieces into both tributes to the thoughts, feelings, ideas, and actions of those dedicated to the Occupy movement, and critiques, with careful selection and refinement of messaging, of where those very same thoughts, feelings, ideas, and actions are going and should go, according to the editor.
  48.  
  49. The Nature of the Use - The re-edit videos do not appear to copy verbatim the original material. The copyrighted material is given new meaning, contextualized with cuts from many other filmmakers' pieces, Occupy actions (and others around the world), and lyrically poignant music from completely different contexts, as well as titles from the editor. The original audio has been almost entirely removed, itself a transformative act, silencing the typically oppressed activist voices The 99% Film attempts to document, ironically, in a re-edit video that develops the movement. The 99% Film trailer does not forma any cohesive "heart" of the re-edit videos, as the rarely-exceeded maximum shot length of approximately four-and-a-half seconds (most shorter) ensures their "heart" is the collection of individuals documented in the myriad of various works themselves. Any central narrative or core through-point of The 99% Film trailer is removed by the extensive re-editing and replaced with another central throughpoint in each video, created by the editor. While The 99% Film trailer is an advertisement for a feature film production, the re-edit videos are advertisements for the movement and demonstrations of the movement's values. The Nature of the Use of the copyrighted material is considerably distinct, economically, culturally, and pragmatically, from that of the re-edit videos.
  50.  
  51. The Nature of the Work Used - The copyrighted work is a publicly posted film trailer for a commercial documentary on a resistance movement that is largely against income inequality, hierarchical tyranny, and capitalism. It, amongst many other works used, documents important historical and cultural moments. Considering the context of wide-spread institutional crackdowns on Occupy and mainstream news media's alternating vilifying and non-existant coverage of it, the spread of protest info and documentation through social media has been of utmost importance in informing the public and contributing to the cultural discourse surrounding the movement. In accordance with this, the re-edit videos both distill coverage of protest action from several other sources down into a condensed, dramatic survey, not unlike the apparent efforts of those producing The 99% Film, and provide articulate contributions to the continuing, evolving discourse being had by activists and those following their efforts. However when considering the nature of the copyrighted material and its role in public discourse, the "transformative-ness" of the unlicensed use is irrelevant. The consideration is whether or not the copyrighted work constitutes facts or raw information that would benefit the public if disseminated. Such video content would seem to serve the public's interest within this current context of a scarcity of activist info about protests for the common good reaching the public. Additionally, the "informational" aspect of the use of the copyrighted work is enhanced by the decontextualization accomplished through removing the audio and editing the video. What is carefully constructed in The 99% Film trailer as an informative exposition on what is happening, where, and why, is re-constituted with many other works into an aesthetic run through public sights of resistance, normally unseen, guided largely just by the audience's interpretation of lyrics or musical aesthetics. The Nature of the Work Used is found to have heightened, ironic meaning when repurposed in the re-edit videos, and its informative nature is utilized by the re-edit videos to contribute to an inundation of aesthetic knowledge of protests occurring in the audience's own cities that they may not be aware of. Additionally, the sparsity of appropriate news coverage of Occupy events creates a context where most attempts at "spreading the word" and information should be seen as legitimate attempts to benefit the public through information dissemination.
  52.  
  53. The Extent of the Use - The 99% Film trailer is not the most prominent source in, nor does it appear to form a thematic, aesthetic, or narrative "heart" or center of, either re-edit video. The Extent of the Use of this copyrighted work appears to be a small fraction, both in terms of amount of the copyrighted work utilized in the re-edit videos, and in terms of the amount of the re-edit videos constituted by the copyrighted work. Additionally, the amount of the re-edit videos that are constituted by The 99% Film trailer is relatively equal with that of most of the other copyrighted works utilized.
  54.  
  55. The Economic Effect of the Use - Nothing about these videos in question operates as a "direct market substitute" for the 99% Film, and any argument that such videos do economic damage to the market for the 99% Film would be substantially undermined by the facts that the only footage that may have been used from that project would be from its publicly released trailer and that these videos, unlike The 99% Film trailer, are not advertisements for any commercial product or service. While a link to potentially donate to Scope Studios is situated in the descriptions, not only is patronization, or a donation-based model of artistic production, well established in US economics, law, and culture, but anyone can also plainly see the total amount of donations placed through that channel is $0.00 and highly unlikely to affect the purchasing power or desire of potential consumers of The 99% Film screenings or DVDs. (Even if I had commercialized the work in some fashion, that alone doesn't exclude fair use consideration.) Additionally, any claim of infringing into the exclusivity of The 99% Film as a channel for the content in question is likewise undermined by the fact that said content is also available in the various short pieces that the constituent filmmakers have already released online in various locations. Such independent works by the filmmakers, preceding or in accordance with whatever licensing agreements you may or may not have with them, would undoubtedly have a larger impact on the market for The 99% Film. Considering their creation by the same hands, minds, techniques, and technologies that constitute The 99% Film, they would be a much more applicable "market substitute" for its content. And even if a critiquing remix work were so pointed and negative that it detracted people from consuming the original work, that holds no bearing on fair use consideration under copyright law, only whether the remix work could function as a substitution for the original, to the same market share, on any substantial level. (See, for example, the numerous mash-ups exclusively using Disney's work to criticize Disney's racism, sexism, or super-letigiousness.) The Economic Effect of the Use of The 99% Film trailer in these videos would appear to be none.
  56.  
  57. Transformative vs. Derivative
  58. Did the unlicensed use "transform" the material taken from the copyrighted work by using it for a different purpose than that of the original, or did it just repeat the work for the same intent and value as the original?
  59. The longest unedited, repurposed clip from The 99% Film is approximately seven seconds long, and all others are about half that, or less. The 99% Film trailer was a planned, timed release to build awareness of and economic support for a commercial film production, capitalizing on a global movement against income inequality and the recklessness of capitalism. The re-edit works take small pieces of the original, copyrighted work, and small pieces of dozens of other original, copyrighted works, to memorialize, support, critique, guide, and energize that very same movement, for no financial renumeration, expected or realized. Not only is this a relatively simple genre transformation from "movie trailer" to "fan tribute," "memorialization of world events/cultural phenomena," or "critique (of the movement and the movie trailer)," but additionally it transforms the context of production and presentation from that of a group of individuals coming together to commoditize a free, open, collaboration-and-sharing-based movement for their gain, to that of an individual, "de-commoditizing" the goods produced from that movement in order to contribute to the free, open movement (based on the legitimization of all voices) with their own critical hand. These videos in question certainly transform the intent and value of the original copyrighted work on a generic, critical, and cultural level.
  60.  
  61. Appropriateness of Kind/Amount
  62. Was the material taken appropriate in kind and amount, considering the nature of the copyrighted work and of the use?
  63. Internet video production culture has established such widespread norms of extensive reappropriation of media content for the purposes of creating new media content that serves as articulate cultural discourse contributions, like with the remix and mash-up genres, that it borders on (if it doesn't constitute) a cultural perspective of communal media ownership. This sort of ideology was made manifest offline Sept. 17th, 2011 with Occupy Wall Street, and its subsequent growth and spread into a global movement. The media production and dissemination methods of most Occupy groups are quite open access, horizontal, and encouraging of re-use and copying. This cultural view is enriched by the production and release of other Occupy documentaries, like #WhileWeWatch (an extended documentary short of largely original content), Rise Like Lions: Occupy Wall Street and the Seeds of Revolution (feature-length documentary made entirely of unlicensed footage), Occupy: The Movie (feature-length documentary being made largely of unlicensed footage), and The American Autumn (feature-length documentary made largely of original, copyrighted footage), that have all been made freely available online. This all hints at the larger Occupy culture of sharing and autonomous, but collaborative efforts that both The 99% Film trailer and the re-edit videos document and demonstrate. Both groups of work also are attempts to inform the public and present the movement, and these common grounds are not perverted by any part of the unlicensed use. The maintenance of the core ideology from the activist movement, presented by the general Occupy culture, the specific culture of Occupy media and documentaries, the context of internet video production culture, and by both sets of video work, demonstrate an appropriate cohesion in efforts and the kind of material. How relatively balanced the representation of copyrighted material from The 99% Film trailer was with other copyrighted works in the re-edit videos demonstrate it was not substantially duplicated to any extent, and was not any central "heart" of either re-edit video. Additionally, a small percentage of trailer for The 99% Film appears in the re-edit videos. These balances demonstrate an appropriateness in amount.
  64.  
  65. Good Faith
  66. Good faith considerations have been shown by the full accreditation of sources to the extent that accreditation is readable from the various original presentations of the copyrighted works utilized. Filmmakers names were used if explicit or known. If no filmmakers were credited explicitly in the work, user or channel names from the most-original source reasonably traceable by the editor were used alongside representation of the video service on which they can be located. No original work that was unable to be accredited in this way was utilized. The descriptions accompanying the videos duplicate these credits, and encourage viewers to track down the originals to appreciate the incredible work filmmakers the world-over are investing into the movement. In contrast to what is inferred by the cease-and-desist letter, you will find no such videos on the Vimeo video-hosting service from Framed Crooks or Scope Studios, as Vimeo's user agreement requires any and all material uploaded to be either owned by or licensed to the uploader. YouTube has no such user agreement requirement, and was consciously selected as the sole video hosting service utilized to host the re-edit videos. No attempt was made to construct or infer the suggestion that any of the video content was original or owned by the producers of the re-edit videos, and in fact many smaller conscious decisions and acts such as that (and accrediting the the original works as "sources" instead of just "footage by" or "video" or "credit") demonstrate considerable efforts to contextualize the material presented as a re-editing of that which has already been presented elsewhere. When contacted by a third party interested in licensing footage found in the re-edit videos, the editor made efforts to identify the sources of each clip and provide that party with contact information for them to trace each filmmaker to license their work for a commercial documentary production, in full compliance with The Copyright Act of 1976. This all establishes a significant amount of researched, time-consuming good faith in the presentation of the repurposed material, beyond what is typically exercised in the field of internet remix videos. Chronological ordering of source citation with the order of appearance of the clips would have enhanced this good faith presentation even further, however.
  67. -----------------------------
  68.  
  69. As I'm sure you're aware, commercial documentaries routinely utilize appropriated footage under fair use doctrine, without permission or renumeration. In fact, I was just at the world premiere of the commercial documentary Occupy Love the night before receiving your notice, with both filmmakers whose footage I used without permission under fair use in said videos. Not only did they use a number of clips (I lost count) from internet uploaders that they did not credit, they don't mind that I used their footage in such a way. I also gave original footage of my own to OccupyTVNY to use when requested, before using their footage without permission in said re-edit videos; something one of their founding members praised me for, and decided to feature one of the videos to be the landing page for the opening of Occupy.com. I understand not everyone is in such a position to not mind, whether legally, economically, or just by the privileges of society's disturbed norms. And I likewise hope you and your crew can understand the efforts of an unemployed, anarcho-socialist grad student, Occupy activist, and amateur multimedia artist and filmmaker financing his own original international documentary production for free distribution. We do it for the people at the heart of the movement.
  70.  
  71. If the individual filmmakers are wanting more recognition, as they should rightly get, you can let me know whose clips appear in the re-edit videos, and I can use YouTube's annotation to replace the general "99%: The Occupy Wall Street Collaborative Film" source accreditation with their specific names. However, if they simply disagree with the messaging, well, thus is the nature of swarm-organized, autonomous movements. I won't apologize for that and, no matter how you spin it, disliking the way your work is used has absolutely no consideration in or bearing on fair use rulings under US copyright law, the same law providing your crew reasonable fair use defense against legal action from corporations whose copyrighted logos and trademarked slogans are incidentally captured in the production of The 99% Film.
  72.  
  73. I hope this perspective and information demonstrate the amount of consideration, care, and respect with which these videos were produced, and I hope that, in turn, communicates the appreciation I have for the filmmakers who have been, and still are, beating away at this movement's heart.
  74.  
  75. Solidarity
  76. &
  77. Happy Canadian Thanksgiving,
  78.  
  79. Jordan Boschman
  80.  
  81. ---------------------------------
  82.  
  83. Hi Jordan,
  84.  
  85. I don't have time for silliness. Just let me know if you're removing our footage, or if I'm forwarding this to our attorneys. I'm not interested in your creative commons bs (which those of us who actually work in media refers to as amateur licensing) and I have told you that we do not want our work in any of your videos.  Let me repeat: we want NONE of our work in ANY of your or any third party videos, and our exclusive licensing agreements exist specifically so that is enforcable.
  86.  
  87. Again, just let me know if you're going to respect our wishes or if I'm handing this to our lawyers.
  88.  
  89. (Williams, please go ahead and forward this to the attorneys now, and tell them we'll either be following up on this with them, or will let them know if our footage was removed.)
  90.  
  91. Audrey Ewell