Spotlight: Ian Friedman ‘10
Ian Friedman grew up watching foreign cult films and noticed how many of them borrowed elements – music, sound, and video – from American and European movies and also, from one another. Over time it sparked an interest in the IP aspects of filmmaking. Ian blogs about it on hkfilmnews.blogspot.com; he interns with Kaplan Inc. handling piracy and privacy issues in their preparatory courses, and he has presented on the topic at Seton Hall Law.
Last spring Ian was interviewed in a two-part series by BrandProtection.com, a forum founded by Swiss-based IP protection consulting firm BP Intelligroup to discuss IP enforcement and protection issues.
Brand Protection Council – Interview with Ian Friedman
Ian Friedman, a 25-year-old student at Seton Hall Law School in New Jersey, is focusing on copyright law and has undertaken a project on copyright infringement in foreign films. BPCouncil sat down with him to examine a (surprisingly) little-talked-about violation of IP rights.
1. Can you tell us a little about yourself?
Well, I’m 25 and currently attend Seton Hall Law School in Newark, New Jersey where I study copyright law and am scheduled to graduate in 2010. Right now, I am a second year student. I’m married to my wonderful wife Jessica Friedman who is an Assistant Editor for Macmillan/McGraw-Hill in New York City and, we own a wonderful cat named Roxy.
2. Would you call this plagiarism – similar to songs that sound suspiciously like another piece of music?
I don’t think plagiarism in the context of music and images is quite possibly the correct term. I really feel that (at least in the American legal context), infringement would be the proper term. The fact that these scenes are re-used wholesale and not simply copied in idea and tone lends itself to that conclusion. Dealing with the issue of similar story lines, American copyright law tends to give a wide berth to the public domain.
The main concept with infringement vs. fair use is that ideas alone cannot be copyrighted; thus, what many feel are rip-off movies, while possibly being so, are not prohibited. It dates back (once again in American law) to Nichols vs. Universal, which decided against broad protection of ideas. In that case, one thing pointed out was that the less developed a character was, the less protection it can be granted. A playwright essentially wanted to claim copyright to the idea of star-crossed lovers and angry parents from different faiths, which is essentially the concept behind Romeo and Juliet.
However on the flip side of that coin, Russian Commando and Nigerian Titanic that I showed in my presentation are without a doubt infringement because they copy the movies wholesale.
3. Is there some kind of measurement used to determine if a film has infringed another's copyright? Like how much (percentage) of a movie's scenes should be similar to another?
In American law, there are numerous different standards used to evaluate if a film is infringing on the story of another. The most common one requires first to see if the parties had access to the film. Then there are examinations to discover similarities and differences in the two products, if the material copied is simply ideas and thus unprotectable, also there is a consideration as to whether people might think the product is an official authorized product. Now that’s a vast simplification of how the issue is examined, but as anyone studying law can tell you, answers and explanations in law are rarely simple.
4. Is there something in copyright law that refers to or prohibits this phenomenon?
The laws are already in place to deal with the issue. The problem is sometimes when comparing an unknown problem to a known one it is not always clear and easy. The issue of stolen plots in films actually has a well-established case law history. Stolen music and stolen footage are most often simply the same as a case of infringement.
What needs to be put into place and what I talk about in my presentation is a regime that can allow for films with stolen music or footage to be released, but allow for the compensation of copyright holders. It’s a system that would work with a statutory license. It’s more workable in American law, because the United States recognizes copyright as an economic right and not a moral right, as is often the case in Europe.
5. Come to think of it, when protecting the IP of films, is the entire film protected? Each scene? Storyline? Dialog?
The film is protected from direct copying in the sense of being bootlegged due to the right to control public displays of their work. In terms of copyright infringement of films, there can only be infringement if there are protectable elements of the story that are copied. Mere ideas and concepts cannot be given protection by copyright. This is actually important because if it was not the case, then most movies and novels could not be made because they would be “copying someone else’s ideas.” It would obstruct the concept of the public domain and also runs counter to basic free market principles.
The owners of Dawn of the Dead attempted to sue Capcom over their video game “Dead Rising” claiming that because it was set in a mall during a zombie invasion, it violated their copyright. That was about the only thing the two plots had in common and the case was dismissed by a Federal Judge for exactly the reasons I discussed above. Nothing that was protectable was copied by Capcom. Zombies and malls are not unique enough by themselves to be considered protectable.
The Lexis Nexis citation for that case is
Capcom Co. v. MKR Group, Inc., 2008 U.S. Dist. LEXIS 83836 (N.D. Cal. Oct. 10, 2008)
The Capcom case serves as an example of when there is not infringement and also why the laws work out for protection of copyright, but strike a balance with not granting too much protection.
6. How can creators/producers of an infringed film be granted relief or compensation? Is there a case study available?
Usually, if the film is being shown in their home country, they can file a request for an injunction against the showing of the movie, because it is an infringing work. A good case study for this would be when Universal Studios got a permanent injunction against Film Ventures International from showing the movie Great White (original title: The Last Shark).
Parties with access to Lexis Nexis should look up the case number
Universal City Studios, Inc. v. Film Ventures International, Inc., 543 F. Supp. 1134 (C.D. Cal. 1982)
It is a classic example of how producers can go after an infringing work that is being displayed in their home country. If it is not shown or sold in the US, then they have to file an action in the producing company’s country and under applicable local law.
Regarding the issues of music and film footage being stolen, the issue is no different than a lawsuit dealing with unlicensed sampling of music, despite this specific problem not coming up as often as one would expect it to.
7. What if the infringer splices in scenes from different movies?
That issue is more or less direct copyright infringement and the producers can sue the company that produced the infringing film (and unless it’s displayed in this country, it must be in the filmmaker’s home country where it was made). If it is displayed in this country, they can also sue the distributors.
8. Where are these copyright infringing films actually marketed? Are they having any success?
Most of these films (with the exception of Martial Arts and action films) often don’t gain distribution outside the home country and immediate region. Turkish films were known to appear in Greece and Germany. In terms of success, it was more often a domestic issue, but a good deal of money was made if the film was a success domestically. One must understand that a good deal of money in foreign markets versus, a good deal of money with a Hollywood blockbuster are two very different things.
Regarding Martial Arts and action films, these movies often were successfully exported for sale in Western nations. In fact, an extremely large number of martial arts movies played theatrically in the United States. The Italian film The Last Shark made a couple of million dollars in one region alone in the US before it had an injunction placed against it.
However, one must also take into account immigrant communities. Films produced in a native country of origin are often exported by immigrant communities in foreign countries. The Turkish releases in Germany were meant for the large Turkish community in Germany and not the country as a whole.
9. Does the violation involve just copying another's work – or do the infringers actually take revenue from the original creators as in movie piracy?
Well, usually they do not in the sense that they rarely are in direct competition with each other. Nigerian Titanic is an example of a film that was not released until 2003. These films do take potential licensing revenue due to the copying of music or images. That is why for older releases, instead of suing the companies (which is often impossible for numerous logistical reasons), a statutory licensing scheme needs to be worked out. It is one of the main solutions that I proposed in my presentation.
10. What is your take on the fact that this kind of infringement has never made the headlines?
Most people haven’t seen the movies involved or those that have figure it to be a non-issue for some reason. The fact is that unless the movie plays or is being sold in the US, you have to sue the production company in their homeland. This in itself is also a problem for film producers. During the 1970s to 1990s, copyright law in many countries (and still today) was poorly established or rarely enforced. It was more of an expense to sue the copyright infringers, and still there with little chance of return.
11. Where are most of these infringing films produced?
Today, most of the infringing movies come out of Bollywood. Bollywood has an extremely bad habit of simply—for lack of a better word—remaking more movies than even Hollywood does. The only problem is they never get permission for this. The script is often changed a little to fit in the dancing routines and to as one Bollywood producer said, ”Indianize” it. There are Indian versions of movies ranging from Fight Club, Bloodsport, Philadelphia, The Psychic, and many more.
12. What first interested you in these films?
Well, I always loved martial arts films as a kid from the Shaw Brothers, Golden Harvest, and others. It didn’t take a long time to discover the use of un-original music and often from very recognizable sources. One Shaw Brothers horror film uses Brain May’s theme song from The Road Warrior as its own theme. I found it genuinely interesting to see music used for situations far different than originally intended.
Regarding stolen plots and footage, I just found it truly fascinating to see how other cultures were remaking Western films for their own domestic consumption. The films were often crude, but immensely enjoyable.
The legal implications of this practice first interested me when I stated law school and besides having a natural interest in copyright, I found it strange that practically little to nothing was written on the issue. I felt it was something the legal community would find interesting and something I myself wanted to learn more about.
13. Why do you think for older films simply seeking legal redress is not the answer?
I have to admit, that at heart I am a film fan, and would hate to see these films edited to remove offending parts, but even from a legal standpoint it’s just not practical. Many of the companies do not exist in any way that allows for legal action to be taken against them. US companies that once distributed the movies often only released the film once, and it’s entirely likely that the statute of limitations has expired since no new copying has occurred.
A statutory licensing scheme allows for distributors to license the film, fans to purchase, and the copyright holders to be properly compensated.
14. Where can our readers see the full presentation and clips?
Because of the way the camera had to be positioned, people wanting to watch the presentation should go to this link.
The clips and slides can be view via this youtube playlist.
People may watch them via switching between tabbed browsers or after the presentation. The presentation makes clear what clip or slide is on the screen.
15. Can you tell us your plans for the future (Any internships or jobs in the wings)?
At the moment, I’m looking forward to successfully finishing up my second semester at Seton Hall Law School in Newark, New Jersey. I am still looking for an internship in the field of IP and Copyright. I’m hoping this presentation will help prove as effective as any resume in showcasing my talents along with informing the legal community of an oft-ignored legal issue that is in fact a very real issue.
Any firm, group, or just interested party who wants to contact me can reach me at email@example.com.