Almost forgot! In terms of Bill Graham vs. DK, there are also characteristics that make that decision not applicable to audio-visual. First, the fact that DK did not reproduce them full size was a main issue in the decision and to quote from that decision: "Second, DK minimized the expressive value of the reproduced images by combining them with a prominent timeline, textual material, and original graphical artwork, to create a collage of text and images on each page of the book. To further this collage effect, the images are displayed at angles and the original graphical artwork is designed to blend with the images and text." I'm sure you can do this with Days of Heaven by popping up the paintings by Vermeer and de la Tour on screen along with Lewis Hines photography, text from The Book of Ruth and the writings of the Edwardian philosophers that Malick references (more so than the claims by film professors of Heiddeger) so it would be legal to show in the classroom, but I suspect that this is not how films are being shown in the classroom. (However, I would gladly teach *that* class!)
Also, the fact that the book was biographical in nature was part of the decision again sustaining Jessica's insistence on separating fiction and non-fiction in the eyes of the court. Again, I don't have time to go through the entire decision but I would bet the promotional aspects of a poster rather than the use of them as an end-product would come into play, though Graham might have been selling the posters as well. I don't remember if that was the case. Now, if Jessica would only admit that 2015 is the year of the New York Mets, harmony would reign. Best regards, Dennis Doros Milestone Film & Video PO Box 128 / Harrington Park, NJ 07640 Phone: 201-767-3117 / Fax: 201-767-3035 / Email: [email protected] Visit our main website! www.milestonefilms.com Visit our new websites! www.mspresents.com, www.portraitofjason.com, www.shirleyclarkefilms.com, To see or download our 2014 Video Catalog, click here <https://cdn.shopify.com/s/files/1/0150/7896/files/2015MilestoneVideoCatalog.pdf?2223081985127089573> ! Support "Milestone Film" on Facebook <http://www.facebook.com/pages/Milestone-Film/22348485426> and Twitter <https://twitter.com/#!/MilestoneFilms>! On Mon, Aug 24, 2015 at 11:39 AM, Dennis Doros <[email protected]> wrote: > Carla, > > I'm sorry, but the Google Books search is a false statement and the case > actually supports Jessica. The court allowed that Google could scan entire > books but does *not* allow the reading of an entire copyrighted entire > book. Books that are still under copyright can only be searched by users, > allowing users to read multiple *portions* that are relevant to their > searches. The fact that they can only read portions of the scans and there > was a link to purchase of the entire book was important to the judge. Also > the judge ruled that as 93% of the books were non-fiction, this was a > factor. Based on this judgement, Jessica's claim that fictional films have > to be treated differently in using their entirety seems to be very > accurate. There's a good reading of the decision here > <http://scholarlykitchen.sspnet.org/2013/11/18/google-books-lawsuit-dismissed-all-society-benefits-says-judge-chin/>. > Also, that decision is under appeal and I'm not sure there's been a final > decision. > > I have to say that I haven't looked at the HathiTrust case and I can't > now because Amy's asking me to comment on a poster design, but it seems the > judge ruled with the exact same reasoning. That entire works can be scanned > for archival purposes, but not for the use of the entire book. Only the > search itself is allowed. > > And because of DMCA, DVDs also have to be treated differently than books. > You certainly can't take a DVD and transfer it up online for use. That's > breaking the digital code and you're only allowed to do this for clips. The > use of illegal uploads on YouTube may be encouraged here as there's no > breaking of the digital code by the user, but a) I don't know if that would > be upheld in court and b) morally very questionable. And as anyone who > knows my rants on the listserv, I consider that should be part of > everybody's education and everybody's decision making. Just because you > won't be caught, or just because a court case hasn't been decided on an > issue, doesn't make it legal or ethical. > > BUT!!! what discourages me is that we're back to the bad old days of this > listserv when a few (not all) are looking for ways to subvert the > foundations of the service provider when we should find ways to co-exist so > these services can continue to exist. And yes, I'm now even including the > studios along with the rest of us since they are investing large amounts of > money to restore films even for their very minor titles and they are making > them available to the public and institutions at a very reasonable price > while knowing they will lose money. (Not something studio owners and > investors really appreciate.) I was just at The Reel Thing conference and > the profit/loss of these minor titles is an issue. As for indie > distributors, I've been warning for years that it's tough times and just > because your favorite distributors haven't closed down, that doesn't mean > they won't in the coming years. Look at New Yorker Films and the loss of a > huge number of titles. > > > > > > > Best regards, > Dennis Doros > Milestone Film & Video > PO Box 128 / Harrington Park, NJ 07640 > Phone: 201-767-3117 / Fax: 201-767-3035 / Email: [email protected] > > Visit our main website! www.milestonefilms.com > Visit our new websites! www.mspresents.com, www.portraitofjason.com, > www.shirleyclarkefilms.com, > To see or download our 2014 Video Catalog, click here > <https://cdn.shopify.com/s/files/1/0150/7896/files/2015MilestoneVideoCatalog.pdf?2223081985127089573> > ! > > > Support "Milestone Film" on Facebook > <http://www.facebook.com/pages/Milestone-Film/22348485426> and Twitter > <https://twitter.com/#!/MilestoneFilms>! > > > On Fri, Aug 21, 2015 at 4:06 PM, Bergman, Barbara J < > [email protected]> wrote: > >> Thanks Carla. Good summary. >> >> >> >> Barb Bergman | Media Services & Interlibrary Loan Librarian | Minnesota >> State University, Mankato | (507) 389-5945 | [email protected] >> >> >> >> *From:* [email protected] [mailto: >> [email protected]] *On Behalf Of *Carla Myers >> *Sent:* Friday, August 21, 2015 2:59 PM >> *To:* [email protected] >> *Subject:* Re: [Videolib] Copyright question: American Playhouse Films >> >> >> >> Sure! Off of the top of my head I can think of three. The Google Books >> lawsuit and the HathiTrust lawsuit are also both good examples. In both >> cases the scanning of millions of books in their entirety was found to be a >> fair use. There is also the Bill Graham v. DK lawsuit, where courts found >> the republication of concert posters to be fair use. >> >> Again, I caution you to not try to limit the application of the TEACH Act >> based off of perceived limitations on the application of fair use. They are >> two different statutes and I think it's unwise to try to limit the >> application on one based off of the language of another. >> >> My view is that an instructor can always consider utilizing the TEACH Act >> for providing a copy of a work to students online, be it in part or in its >> entirety. Working through the points of compliance and the language of the >> law will help them determine if their use can be made under the Act. I >> personally don’t find the quote in the congressional report to be vague or >> nuts. To me they are saying that you do need to consider the amount of the >> work that is relevant to the educational goal and use only that. Say there >> is an instructor who is teaching an online Computer Generated Imagery (CGI) >> class and wishes to stream Peter Jackson’s *The Fellowship of the Ring* >> in its entirety for their students. There are certainly lots of scenes in >> this movie that incorporate CGI, but there are also lots of senses where >> hobbits are wandering through pastures and there is no CGI used. Under the >> TEACH Act I think the instructor would be able show clips of the scenes >> where CGI is used but, in my opinion, the parts of the movie that have no >> CGI would not seem relevant to the educational goals of the class so I >> would discourage them from using those. As for your Citizen Kane example… I >> would say you would need to talk with the instructor to find out their >> instructional needs and then work carefully through the TEACH Act to see if >> it could be applied to the situation. As with almost any copyright >> questions you can’t generalize and say “Sure that’s ok!” You need to >> examine the facts of each situation, see what exemptions may be applicable, >> and then work from there. >> >> >> >> I don’t want to tie-up the list with back-and-forth so I’ll conclude by >> climbing up on a soap box and saying that fair use and the TEACH Act are >> exemptions that are extremely applicable in higher education. When wanting >> to share copyrighted works with students I encourage instructors and >> librarians to consider them both carefully and apply the law in a >> thoughtful manner. I think that as librarians we are here to promote and >> champion access to information. When we curb our practices out of fear of >> “what if I might get sued” or based off of bad copyright information we are >> keeping ourselves from achieving this goal. I’m certainly not encouraging >> anyone to break the law in the name of information advocacy! Rather I’m >> saying that Congress gave us these exemptions to help us fulfill this >> mission and I think that should always thoughtfully consider their >> application to a situation. >> >> >> >> Best, >> >> Carla >> >> >> >> VIDEOLIB is intended to encourage the broad and lively discussion of >> issues relating to the selection, evaluation, acquisition,bibliographic >> control, preservation, and use of current and evolving video formats in >> libraries and related institutions. It is hoped that the list will serve as >> an effective working tool for video librarians, as well as a channel of >> communication between libraries,educational institutions, and video >> producers and distributors. >> >> >
VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.
