News

Victim of copyright infringement? Prove it!

A number of Australian filmmakers have alleged that their films have been ‘ripped off’ by Hollywood studios, but proving copyright infringement in a court of law is not an easy task. Gene Goodsell writes.

Copyright owners have the exclusive rights to do certain acts in respect of the subject matter protected under the Copyright Act.

In Australia, patents and trademarks are registered, however, copyright is not. This position can be contrasted to that which exists in the United States, where copyright can be registered with the Copyright Office in Washington D.C. In the United States there are two important reasons to register a work. The first is to legally benefit if there is copyright infringement.

The second is to prove chain of title.

In Australia, the following exclusive rights are protected in relation to film:

  • Communication of the film to the general public.
  • Reproduction of the film.

In order for there to be infringement, a substantial part of a film must be reproduced without the permission of the owner. There are two exceptions:

  • If the work is in the public domain; or
  • If a special exception applies.

As with most areas of law, determining what is ‘substantial’ in a particular case is a question of fact and can only be decided after considering all aspects of the case. When deciding whether an infringement has occurred, a court will be most interested in determining whether an essential portion of the film has been copied.

There are several other factors that a court will consider when deciding whether there has been copyright infringement. These include:

  • Whether the copyright owners’ livelihood may be affected;
  • Whether the author’s work and skill is being taken
  • advantage of; and
  • The originality of the portion taken.

One of the most fundamental rules with regards to copyright infringement is that copyright protects the wording rather than the ideas themselves. As a result, filmmakers who claim that there has been copyright infringement often run into difficulties when their film is based on ideas or themes inherent in another work.

When determining copyright infringement cases, the courts need to balance public versus private interests.

It is difficult to prove that one work is substantially similar to another, and it’s not enough that the two stories are similar, follow similar storylines, plots and characters.

Without proof of access to the original, two works would have to be virtually identical for a case to exist. “Influenced by” and “inspired by” are not the same as “is a copy of”. Even if a filmmaker copies a substantial part of a film, proving this in court can prove to be a difficult proposition. Lawsuits, especially in the United States, can run into the hundreds of thousands and even millions of dollars.

In terms of copyright infringement by piracy, promotional screener DVDs distributed by studios are a common source of unauthorised copying. Some copyright owners have responded to infringement by displaying warning notices on commercially sold DVDs. Such warnings do not always adequately represent the purchaser’s legal rights, which in the United States generally include the right to sell, exchange,  rent or lend a purchased DVD.

Two interesting cases concerning copyright have recently been decided in Australia. The first is the iiNet case, which concerned a group of 34 entertainment companies, represented by the Australian Federation Against Copyright Theft (AFACT), which attempted to sue internet service provider after it refused to act on infringement notices containing allegations that some of its customers were using peer-to-peer networks to illegally copy movies and music. The action was

unsuccessful and will be appealed.

The second is the Kookaburra case, where the Australian band Men At Work were found guilty of plagiarising a riff from a popular Australian children’s song in their 1980s hit “Down Under”.

The iiNet case is interesting because it involves some of Hollywood’s largest entertainment companies. The stakes are high. Initially, Justice Cowdroy found that an internet service provider could not be held liable for copyright breaches carried out by its customers. The initial hearing lasted for over a month. AFACT is  appealing the decision claiming that Justice Cowdroy’s decision was not in keeping with copyright infringement case law. Even if AFACT wins on appeal, this is unlikely to stop piracy.

This case can be contrasted with the recent decision of the England and Wales High Court which found in favour of Hollywood filmmakers. In this case the reason why the internet site Newzbin was found liable whereas iiNet was excused is because of the functions of each entity. Newzbin was a site focused on piracy. As an internet service provider iiNet was further removed from this process.

Special thanks to LA entertainment attorney Gordon Firemark, Esq., for his input.

Gene Goodsell can be contacted at ggoodsell@navitasmgmt.com, www.navitasmgmt.com

ADVERTISEMENT

Get the latest media and marketing industry news (and views) direct to your inbox.

Sign up to the free Mumbrella newsletter now.

 

SUBSCRIBE

Sign up to our free daily update to get the latest in media and marketing.