Posted by PTravel on 06/29/06 20:47

----- Original Message -----
From: "Larry in AZ" <usenet2@DE.LETE.THISljvideo.com>
Newsgroups: rec.video.production
Sent: Thursday, June 29, 2006 1:18 PM
Subject: Re: Paging PTravel...


> Waiving the right to remain silent, "PTravel" <ptravel@ruyitang.com>
> said:
>
>> Hi, Larry,
>>
>> I'd prefer not to discuss Moore's film, specifically. However, I
>> have, within the last two months, answered this specific question for
>> a client, i.e. use of a third-party's protected expression in a
>> documentary film. The short answer is that it is NOT fair use to do
>> so (absent other traditional fair use defenses, e.g. parody), and
>> WILL result in copyright infringement liability.
> [much deleted...]
>
> Thanks, Paul. That's more than I had expected you to say. My own opinion
> is meaningless, but I'd expect that Moore, with his propensity to get in
> scuffles, would have competent legal advice...

I'm sure he does. However, I'm sure he also considered the business
ramification of a copyright infringement action. The film has long been
through first run and DVD release, so injunction is not much of a concern.
There is a principle called "apportionment" when determining damages in an
instance like this. The copyright owner will be awarded as actual damages
only that portion of the gross profit (less cost of sales) that can be
attributed to use of the infringing material. The bin Laden material was
relatively de minimus compared to the rest of the film, and would not result
in a significant damage aware. Statutory damages would be limited to
$150,000 per infringement (unless the owner could prove intentional
infringement -- impossible if Moore obtained a non-infringement opinion), so
we're looking at a maximum award of $300,000 (if the DVD and the film are
considered two separate infringements -- if only one, then the award would
be $150,000). As I've often said, the legal answer is not necessarily
dispositive of the best business solution. In Moore's case, the risk of
liability was probably substantially offset by the artistic and social goals
that he sought to accomplish.

>
> --
> Larry Jandro
> Video Engineering & Equipment Rentals
> Scottsdale, Arizona, USA
> [Remove spamtrap in ALLCAPS to reply]

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