Universal City Studios has filed a copyright infringement lawsuit against Perezhilton.com for allegedly posting both still screen captures and video of Jennifer Aniston appearance in The Break-up topless -- a scene that was cropped for the feature film that apparently didn't show any of her naughty bits.
Universal alleges that at some point during production or post-production that a portion of the film depicting Aniston's censored nude scene were illegally copied, but the company doesn't state in their complaint what proof they have to support the accusation against the defendants, or even proof that such copying even took place at all. They also allege that the owner of Perezhilton.com partnered with other unnamed defendants to get copies of the stolen footage, again without any indication of how this took place.
The complaint continues by saying that the site posted parts of the footage, and that such actions were infringement of its rights, but there are other problems other than the ones I've included above.
12. Defendants thereby reproduced, distributed and publicly displayed Plaintiff's copyrighted images from the Motion Pictures, and/or derivative versions thereof, in violation of Plaintiff's exclusive rights in the Motion Picture under Title 17 U.S.C. 106.
This statement is factually incorrect, as the rights granted to the authors under 17 U.S.C. 106 are in fact not exclusive. Rights to make copies of protected works without permission are granted under 17 U.S.C 107, the "fair use" section of the copyright act.
Though how much of a film may be copied while still being considered fair use is subjective and often changes based the judges understanding of intellectual property law, and the specific circumstances of the case.
It is without a doubt fair use to capture a single frame from a feature film and redisplay it, if not due solely to the percentage of the original work that a video frame represents. A film of one hour and thirty minutes in length should contain approximately 129470 frames, meaning a single frame should represent less than .001% of the total -- a number virtually any court should find acceptable.
As for video, even a thirty second clip would only be half of one percent of the total. Fifteen seconds should be beyond reproach, but there are other factors that must first be considered, such as whether or not the copying is for commercial gain.
A true and correct copy of a frame from Plaintiff's copyrighted Motion Picture is attached hereto as Exhibit A.
I provide a copy of Exhibit B, as the image submitted is now a part of the public record and no longer under the copyright control of Universal. This is a censored and B&W version of the photo that has been public for nearly two weeks now, and published by papers around the world that are not subject to United States jurisdiction. Another photo, the one mentioned in the claim above, is not available here directly. It was probably admitted under some sort of privacy seal.
Given the lawsuit and the potential for education on copyright law and its misapplication like in this case, it would probably bring the image being sued over into fair use a second time -- for educational purposes. Any lawyer would certainly agree, if they weren't being paid to think otherwise such as Universal's counsel. That image is available off-site, and is nothing special to write home about.
Claim 13 is where Universal attempts to establish that not only did Perezhilton.com infringe their copyrights, but did so willfully, a requirement for Universal to pursue the maximum on statutory damages of $150,000 per act of infringement.
13. Plaintiff first learned of the Stolen Footage on or about February 6, 2007, and, on that date, Plaintiff immediately sent to Lavandeira, by e-mail and U.S. mail, a letter demanding that he not post any such Stolen Footage on the Website. A true and correct copy of such letter is attached hereto as Exhibit C. Lavandeira ignored Plaintiff's demand and posted portions of the Stolen Footage, including Exhibit B, on his Website, in willful, wanton and brazen infringement of Plaintiff's copyrights.
As I stated earlier, a single video frame is definitely not what Congress had in mind when it wrote copyright laws in general, and exactly what they had in mind when they wrote the fair use exceptions. No one can reasonably say that a single video frame damages Universal's ability to gain financially from the film, nor because it is a copy of their own work, could it possibly damage their reputation.
The video footage, depending on its length, is another matter.
The remaining claims up through 17 simply vouch that Universal has done everything it needed to do to protect its work, such as filing with the copyright office, and that their material was eligible for protection in the first place. Claim 18 contradicts claim 13, however.
18. Defendants have directly, vicariously, and/or contributorily infringed and/or induced infringement, or Plaintiff's copyrighted Motion Picture in violation of 17 U.S.C. 501.
Where as claim 13 says that defendants acted to infringe upon Universal's rights willfully, claim 18 says they have acted directly, but also vicariously, or indirectly, which in a way precludes a willful infringement on their part. This is simply Universal covering all their bases and accusing perezhilton.com of everything they can possibly think of, and given the slippery legal slope they are on regarding the still images, I find this incredibly disingenuous.
Claim 20 is specific in that if true and for the purpose given, it could make the case much more difficult to defend in regards to the video clips, but not the still images.
20. Defendants have received substantial profits and benefits attributable to and in connection with the unauthorized reproduction, display, distribution and utilization for purposes of trade and promotion of derivative versions of the Motion Picture, and the copyrighted elements therein, which benefits should be disgorged by Defendants.
Longer version: Universal says that perezhilton.com infringed their copyrights for financial gain only, and alleges that many profits were realized in such activities. In copyright cases established by the Supreme Court, one of the fair use tests has been given a greater weight than the others in the matter of commercial gain. If your copying is commercial in nature, such as printing a professional sports team's logo on a tee-shirt and then selling it, the court has ruled that such commercial activity weighs against the defendants as it places them in direct competition with the copyright owners.
They have also found that in cases where there is no commercial threat, that non-infringement must be assumed unless other tests indicate otherwise. What constitutes commercial activity is of course also subjective, and dependent on the individual circumstances of the case.
When it comes to this site, I assume that Universal is referring to advertising revenue, and I've seen no other use for copyrighted items on site. I believe it will be difficult to prove that the site used this particular image and these particular video clips just to boost their ad revenue, but anything is possible.
Claim 21, that "All of Defendants' acts are and were performed without Plaintiff's permission, license or consent" is irrelevant if perezhilton.com did not intend to intrude into Universal's market by competing with them. This is because, as I've said, fair use grants rights to parties other than the owner that can be exercised without permission of any kind. This is more of Universal just covering its bases by making every accusation it could think of, regardless of whether or not they believe them to be true.
Complaint 22 is one I believe Universal is going to be least able to defend, and borders on the ridiculous.
22. The said wrongful acts of Defendants have caused, and are causing, great damage to Plaintiff, which damage cannot be accurately computed, and therefore, unless this Court restrains Defendants from further commission of said acts, Plaintiff will suffer irreparable injury, for which it is without an adequate remedy at law. Accordingly, Plaintiff seeks an order under 17 U.S.C. 502 enjoining Defendants from any further infringement of Plaintiff's copyrights.
This kind of thing usually comes into play only when someone has taken such liberties with other peoples material that they are essentially attempting to resell the disputed work and are competing with the original author in their market place. In this case, it would be more appropriate to sue if someone was copying the entire film in question, in which case that copying would be directly harming Universal's ability to itself sell the film. Copying a quarter, or even half of the film might make such a claim viable, but certainly not a short video clip, and definitely not a still frame.
Universal is essentially claiming here that they are in the market for profiting from a single still frame that isn't available anywhere from themselves, and that someone else -- in this case perezhilton.com -- is competing against them for the market for profiting from said still frame. You can also apply the same to the video clips.
Because the video clip has not been released by Universal and Universal has said in previous claims that it was never intended to be released, it is absurd for them to claim that the distribution of these materials represents not just damage to them, but irreparable damage. I think the reason though is quite clear why Universal is pushing such a weak case with such baseless claims -- there is no case precedence for what popular and financially successful blogs such as perezhilton.com can get away with, and they want to establish one with a ruling decisively in their favor, even if it is not consistent with the spirit of the law.
The rest of the complaint is fairly standard, seeking an injunction ordering the site to cease all infringing activity, for authorities to seize all property from the site belonging to Universal, and the awarding of monetary damages.
I can't help but wonder why Universal is spending so much time and money to go after a blog like this when we're only talking about a single still image, and a very short video clip. I mean if their allegation that the footage was stolen is true, then obviously they have an interest and the legal right to pursue justice in such matters, but this is a civil copyright complaint, not criminal. No jail time is possible, should perezhilton.com lose the case, only money is at stake.
If the theft is so important, I wonder why Universal hasn't filed a complaint with the police or FBI over this, and if they have, what evidence of the theft do they that would make them pursue this civil complaint first when a criminal complaint would allow virtually instantaneous actions such as seizure of servers and evidence gathering that you can't get in a case like this.
As far as the single image is concerned, Universal has no hope of winning on that claim. The video, if it was not "stolen" by the defendant perezhilton.com and is under thirty seconds in length, then I believe they will also lose on that count as well, leaving them with nothing.
It'll be interesting to see if the site settles, or goes to court. I'm predicting the former, though I would not rule out a summary judgment in favor of the defendants based on my prior analysis.