Monday, May 17, 2010

Can you own your creative process?

This is cute: Paramount Pictures is now claiming the copyright to video they didn't produce. A guy came across the shooting of Transformers 3 and used his iPhone to record a few minutes of the action. When he posted it to YouTube, Paramaount issued a takedown notice, claiming violation of copyright. Here are a few seconds of the video:

My question, were I a lawyer, would be: "Exactly what is Paramount claiming to have copyrighted?" It can't be the video, because they didn't create it. It can't be the Transformers 3 movie, because Mr. Brown hasn't reproduced any of their film. It can't be the story, because (even granting the dubious premise that Transformers 3 will have a plot) this video hardly reveals the story (we do learn that an automobile will be tossed in the air - in other spoilers, Bruce Willis will fire a gun during Die Hard 37).

If you are creating a copyrightable work, can you really claim copyright over every activity related to its production? If someone were to post a detailed, written description of what he'd seen from his window, would Paramount be able to claim a copyright over that description? That seems far-fetched, as it's obviously fair use commentary or reporting. It seems like the same sort of situation, when you produce a video description of the creative act - which is not a reproduction of the artistic work itself. If you don't want anyone to learn anything ahead of time, you might try to film on a closed location. But this copyright claim looks rather dubious and I'm glad the creator is resisting the takedown notice.


Cranberry Necklace said...

Have you ever thought of becoming a lawyer? You have all the abilities required for the job (excellent persuasive writing, an analytical mind) coupled with diverse interests, vast knowledge and a background in history and research.

Consider becoming a copyright lawyer.

Scott Hanley said...

That reminds me of an incident when I was about 16 and our church youth group performed a mock trial of Jesus. I was the defense attorney and my Dad came away thinking for sure I ought to be a lawyer (although I lost the case - career record, 0-1).

One critical quality I (usually) lack is the ability to advocate a single point of view without considering the opposing perspective. John D. Rockefeller once said, "I don't hire a lawyer to tell me what I can and can't do; I hire him to tell me how to do what I want to do." Paramount has those types of guys working for them, but I could never be one.

Cranberry Necklace said...

Without due consideration of the opposing point of view, a lawyer can never rebut the opposition. Paramount's lawyers forgot to consider (or ignored) the other side's case and mistakenly took this case. Had you been Paramount's lawyer, you would have advised against this case and saved Paramount a heap of money. You would have easily persuaded your bosses at Paramount that they really wanted to keep their money more than waste it on this worthless case!

A lawyer who has more than the wealthy guy's money in mind when he thinks about a case would be quite refreshing. You have the potential to be such a lawyer.

Though you took the lawyer's role in the play and lost the case, as a real lawyer you'd likely sport a real record far better than 0-1.

Scott Hanley said...

In this case, Paramount's strategy is free, because they haven't gone to court. They've just issued a takedown notice to YouTube, claiming copyright over the video. In such cases, YouTube automatically removes the video and then the person who posted it has the option of reasserting their ownership and having the video reinstated.

Under the Digital Millenium Copyright Act, when you issue one of these notices, you are swearing under penalty of perjury that you are the true owner of the content, so it's possible that Paramount has exposed themselves to penalties. But I can't think of any cases off the top of my head where I've heard of a false claim being punished by a court. In practice, it seems to be a risk-free strategy.