Warner Bros. Forced To Fight For Fair Use

V-similitude writes with news that Warner Bros. has been forced into a position of claiming 'fair use' in the defense of an upcoming movie. From the NYTimes: "In The Hangover Part II, the sequel to the very successful what-happened-last-night comedy, the character played by Ed Helms wakes up with a permanent tattoo bracketing his left eye. The Maori-inspired design is instantly recognizable as the one sported by the boxer Mike Tyson, which is part of the joke. (Mr. Tyson makes an appearance in both films, playing himself.) But S. Victor Whitmill, a tattoo artist formerly of Las Vegas and currently from rural Missouri, doesn't quite see the humor. Mr. Whitmill designed the tattoo for Mr. Tyson, called it 'tribal tattoo,' and claims it as a copyrighted work. ... Warner Brothers in its brief also invoked the 'fair use' defense for Hangover Part II, namely the right to parody what has become a well-known tattoo since it first appeared on Mr. Tyson’s face in February 2003."

Comments

Fair use when it suits them

[betterunixthanunix]

For Hollywood, copyright has one meaning: inflating their profits. Unfortunately, almost everyone in America has forgotten that copyright is supposed to exist to improve the people's access to works of art and science, not just to make money for copyright holders, and so Hollywood manages to get away with their abuse of our legal system.

Re:Fair use when it suits them

[Stormthirst]

And you have completely mis-read the OP. He's not arguing that people should be able to pirate Hollywood's content as and when they please. He's arguing that Hollywood abuses the legal system, and does so to extort more money out of the people than Hollywood are due by suppressing Fair Use, and in this case parody. The irony here (seeing as you don't seem to understand it) is that WB are using the parody clauses of copyright law to get out of paying someone damages.

Re:Fair use when it suits them

[Omnifarious]

You seem to think that the goal of the system is to give you open access to anything you want on your terms. That has never been the point of copyright. The point has always been to set up a system whereby creation can be incentivized - which works wonderfully well. We have more creative output and more access to it now than ever before, and every trend is upward.

That shouldn't mean everyone gets what they want when they want it merely because they want it.

Yes, anytime anybody criticizes copyright in any way, you should accuse them of being a deadbeat or a thief. You go on with your bad self!

I had a co-worker who did this. Discovered later he was being paid 20% more than I was, and he did poorer work that was eventually thrown away. But, as they say, correlation is not causation.

Re:Fair use when it suits them

[Omnifarious]

Actually, in the creation of software, it loses. There is a reason that about 80% of the startups around here use Open Source software.

I think the reason we have more creative works and greater access to them than at any point in history is because of the Internet. And these things are happening in spite of copyright law, not because of it.

Re:Fair use when it suits them

[icebraining]

There was never a time after the invention of recording of music and video without copyright, so it's completely impossible to determine if copyright helped or hindered the creation and access to music and films.

Re:Fair use when it suits them

[QuasiSteve]

Wait.. did I miss it? Were the authors of Star Wreck: In the Pirkinning sued by LucasFilm / Paramount / any of the other companies involved with the Star * sci-fi series?

Because I"m pretty sure that downloading/uploading a copy of a movie doesn't fall under most interpretations of the 'fair use' doctine, whereas satire and parody (see story) do.

I would argue that Mr. Tyson is part of the 'work', and by modifying the work of art by putting it on the other guy's face for parody purposes, means the original artist can go bugger off.

If he really wants to try to lay claim somewhere, he should go after the tattoo artists that tatoo'd Mike Tyson + tattoo on somebody else's body:
http://isportacus.com/wp-content/uploads/2009/06/mike-tyson-tattoo1.jpg

But I guess there's less money in that.

Re:Fair use when it suits them

[vadim_t]

And it fails quite badly at that.

For instance, why is LOTR still under copyright? Somebody is obviously getting all those royalties, but how does that incentivize creation?

If incentivizing creation is the true goal, then copyright should be much shorter, perhaps the original length of 17 years. Authors should have a good reason for producing multiple works during their lifetime even if they strike gold (especially those, as they proved they can write good stuff), and publishers and similar should be encouraged to find new authors instead on relying on collecting the benefits of works created a century ago.

But copyright keeps getting pushed to an ever longer length, because its current purpose isn't about incentivizing creation, it's about owning as many works as possible and collecting profit from them, which gets easier the longer copyright lasts.

Re:Fair use when it suits them

[Runaway1956]

The system simply does NOT work. Your position seems to be similar to Hollywood's position that copyright "entitles" you to a constant income forever, and ever, amen. And, probably ditto with patents.

Neither system was meant to ensure that any author or inventor could sit on his arse for the rest of his life, while his "intellectual properties" generated wealth for him. They were ONLY meant to ensure that if ANYONE were to make a coin from his works, then he should get some of it, for a limited time.

The time limits have been raped unrecognizably, fair use has been treated similarly, and parody the same.

What is a reasonable time limit on copyright? How about 15 years for most forms of print, movies, and other media. And for software, 7 years. If there is money to be made from any copyrightable material, that money should have been made within those time frames. After that - it's public domain. And, I don't give a small rat's ass for any arguments to the contrary.

Re:Fair use when it suits them

[Omnifarious]

Open Source software is valuable precisely because strict exclusive ownership rights are not exercised over it. Yes, there are licenses like the GPL. But they do attempt to enforce continuing joint ownership by society at large, not exclusive ownership by the creator.

I, personally, avoid using software that isn't Open Source, and I generally refuse to use non-Open Source software in certain situations. Proprietary software frequently has negative value to me. The exercise of strict ownership over it has leached it of all value it might otherwise have possessed.

Re:Fair use when it suits them

[MikeBabcock]

Both patents and Copyright are excellent, in the form described by Congress originally.

Copyright and patents as (very) limited times for authors to have power over those who would steal their inventions is worthwhile and good for any economy. However, 100+ year Copyrights and absurd "barely any different" patents that act as infinite extensions are not.

The system needs reform, not demolition.

A question

[Vinegar Joe]

Does S. Victor Whitmill have permission from the Maori people to produce tattoos based on their designs?

Re:A question

[Hairy1]

This is an interesting question because it brings up a serious problem with how poor the common domain has become. Maori have a culture and cultural artifacts which they own collectively. It is their culture. No single Maori can claim it for themselves, but they together own it. Today virtually all the cultural artifacts of our period are owned by someone else. Try and use the artifacts of your own culture in a new work and just see how fast you will find yourself in court for copyright violation.

Sing a popular song, draw a picture of a Coke can, or copy a tattoo from someone who is famous, and suddenly it's a huge problem. But it is clearly a double standard. They can copy cultural artifacts, but we cannot copy them.

I'm not really standing up for pirates - outright duplication of works for profit - but I do think that there should be a liberal ability for individuals to copy segments in order to create new works.

Depends on what you mean by "works"

[Mathinker]

> have more creative works and greater access to them than at any point in history. The system, flawed as it may be, works.

I'm willing to cede you that if your definition of "works" is that narrow, you might be right. Unfortunately, other people are also interested in things like anonymity, the ability to secretly share information without fear of government intervention, and other freedoms which they think are a bit more important than how many Hollywood blockbuster movies get released every year. "The system" is currently very successful financially, yet not so successful at preventing the implementation of anti-piracy procedures which infringe on these freedoms --- this is because all of the money is on the side of the hyper-enforcement of copyright side.

My apologies if when you wrote "the system" you meant "as it is now without PROTECT IP, COICA, ACTA, 3 strikes, etc.". My point is that copyright law seems continually evolving in one direction, towards more (and more onerous) copyright, and your observation that everything is actually working right should mean that it shouldn't be evolving at all.