Shining: The Feel-Good Movie of the Summer
This is hilarious: a trailer that depicts “The Shining” (my second-favorite move of all time) as a heartwarming comedy about family relationships.
P.S. This should be Part X in Justin Levine’s ongoing series about the tyranny of copyright (Part IX is here):
Sandy Bresler, an agent for “Shining” star Jack Nicholson, warned that Warner Home Video might not find the spoof amusing. “They are using original footage without permission,” he said.
If copyright prevents fun spoofs like this, there’s something reaaallllly wrong with copyright. (And even if it falls within a satire exception, you go litigate that against Warner Bros.)
P.P.S. Success!
That’s funny. I’d like to see one of my favorite movies, Jaws, in a trailer like that.
I hope the creator of that trailer doesn’t get sued by Warner Home Video. But if he did, it would be interesting to hear the defense. Couldn’t they claim that this trailer is nothing more than a free advertisement for The Shining? I would expect rentals of the movie to go up too, so the defense might even be able to present evidence of increased sales.
Tillman (1cf529) — 10/15/2005 @ 7:54 amTillman,
Copyright law does not look at whether the infingement is beneficial to the underlying work’s value or harmful. The copyright holder has the exclusive rights to make and distribute copies, publicly display and perform the work, make derivative works, and license other to do these things. The “Shining” clip clearly copies footage and is being distributed publicly, apparently without permission.
The defense most likely to succeed would be the fair use defense. In short, the work may use too little material to substitute for the original in the market, and so may not be a fair use. Also, the author can claim the work is a parody, which is also protected. However, parodies must somehow comment on the original work to be a fair use. Here, the “Shining” clip probably does not say anything about the film “The Shining”; it is more of a satire about the movie industry, trailers, editing tricks, and the like. It is more likely a satire, and while a satire still may be a fair use, it is much less likely to win.
I remember there is some case law dealing with movie trailers, but I don’t have the resources or the time to look them up now.
Matto Ichiban (cd9a4c) — 10/15/2005 @ 1:05 pmMatto is unfortunately correct, at least in the Ninth Circuit – cf The Cat Not in the Hat – but I don’t know that any other circuit has adopted the satire/parody distinction. It’s too bad Congress lacks the stones to stand up to the entertainment industry and make this clearer.
Xrlq (428dfd) — 10/15/2005 @ 1:27 pmThe easiest solution is to have Ralph Nader start using the trailer as a campaign ad. Then it would certainly be a fair use.
Matto Ichiban (cd9a4c) — 10/15/2005 @ 6:07 pmWhat’s your first favorite movie, Patterico? If you’re going to say what your second favorite is, you gotta tell us what beat it out for the top slot.
steve M (604ef8) — 10/15/2005 @ 7:08 pmI have to back up XRLQ in that Matto is right. What he aludes to but doesn’t explicitly point out is that the original (or “official”) trailer(s) for the Shining have a seperate copyright protection that is independent of the movie itself. That is how Warner Bros. could get around any argument that the trailer only uses a “de minimus” amount of material from the final film. (See how flexible/corrupt copyright law can be?)
Justin Levine (ee9fe2) — 10/15/2005 @ 9:42 pmWhat’s your first favorite movie, Patterico?
Full Metal Jacket.
Patterico (adeded) — 10/15/2005 @ 9:45 pmLet’s not also forget that the new trailer’s unauthorized use of Peter Gabriel’s song “Solsbury Hill” is yet another separate violation of copyright law under the current restrictive regime – even though the use of the song is absolutely critical to what the new trailer is trying to convey artistically.
Anyone who has seen lots of movie trailers knows that Solsbury Hill is the most overused music track in Nora Ephram “chick flick”-style films. But even if you manage to fool yourself into thinking that a true distinction between “parody” and “satire” can be made in a legal sense. And even if you conclude that this new trailer is a protected parody as opposed to unprotected satire, the use of the song itself is not transformative in any way. I think that that the non-transformative use of the song in this trailer is a brilliant “satirical” comment on how it has been used to death in the past and should thus be protected. But we all know that the law doesn’t work that way.
Therefore, this very artistic editor could potentially face multiple copyright lawsuits from multiple parties over multiple copyrighted works contained within the new trailer. (And don’t even get me started on Jack Nicholson’s “right of publicity” claims…)
Can you understand why I get so worked up about this topic now??
Justin Levine (ee9fe2) — 10/15/2005 @ 10:12 pmThe Shining and Full Metal Jacket as your favorite films?
Didn’t know that you were a fellow Kubrick fan Patterico. Always knew you had great taste….
Justin Levine (ee9fe2) — 10/15/2005 @ 10:14 pmJustin, I’m not sure I understand what the copyright argument would be with respect to the movie trailers. Didn’t this one pull its material from the original movie, and not from any trailers that were actually used to promote the movie? Besides, while this trailer is not intended to poke fun at The Shining, it is intended to poke fun at movie trailers, so I’d think they’d have a pretty strong parody defense WRT to the trailer.
Xrlq (428dfd) — 10/15/2005 @ 10:34 pmXrlq is right on: There may indeed be a separate copyright in the trailer for The Shining, but unless the “Shining” creator copied from the trailer, not the movie, the new creation is not infringing the trailer copyright. The original trailer was also quite different (link available here).
Matto Ichiban (cd9a4c) — 10/16/2005 @ 10:34 amAh! Matto and XRLQ allow me to provide a educational moment here. Two points to make regarding the trailer question:
1. There is more than one ‘original’ trailer for the Shining. What is linked to above is the original ‘teaser’ trailer that is included on the DVD release of the Shining. But I can assure you that other ‘official’ trailers exist from Warner Brothers that includes some of the footage used in the new ‘parody’ trailer.
2. Even if no actual footage from the original trailer(s) was used in the new ‘parody’ trailer – it would still be considered a violation of copyright as a “derivative work”. Even one who doesn’t study copyright law knows full well that there doesn’t have to be actual ‘copying’ of a work in order to run afoul of copyright laws. (In addition to trademark violations in this case of course.)
If someone creates a new unauthorized James Bond film using completely new fottage, actors, script, etc., you can be sure that MGM (or is it Sony?) would have a copyright ciolation claim even though no actual image or fixed work was literally copied. Surely you know that I am right on this, no? The exact same principle applies in regards to the trailer question. Both works, the original and the anuathorized trailer allude to a work and characters owned by Warner Brothers. That is enough to make it an unlawful ‘derrivative’ work. (And thus hopefully you will agree that this all points to the fact that copyright laws are currently too strict – by preventing the creation of new works rather than encouraging them).
Justin Levine (4e5124) — 10/16/2005 @ 6:47 pmAs a calrification to that last post – XRLQ and Matto are correct in alluding to one point: If the only original trailer that existed had footage that was completely diffrent from the unauthorized trailer, then courts would not likely allow for separate copyright claims to be filed on bahalf of both the original trailer and the the underlying film. They would likely see as as the trailer claim trying to “piggypack” on to the feature film’s claim. But the thrust of my point still stands: The unauthroized trailer violates multiple copyrights from multiple works.
Justin Levine (4e5124) — 10/16/2005 @ 7:02 pmJustin,
1. I guess you are right about there being more than one trailer, but that’s beside the point. You claimed an independent copyright in the trailers may be infringed, and that is not true unless there was copying (and subsequent distribution, performance, etc) from the trailer, not the movie. I doubt the “Shining” creator copied anything (footage, structure, dialogue, etc.) from any trailer; he likely copied footage from the film itself. If you have other info, please share.
2. Your comparison to a James Bond film is inapt. Characters may have a copyright if they are highly developed and such, but in general this is a little difficult to obtain in all but the most recognizable characters. If I made a James Bond film, even with an original script, I would probably be infringing someone’s copyright in the James Bond character. However, if I wrote a short story based on that one Chinese guy who dies at the beginning of Indiana Jones and the Temple of Doom, I’m probably ok.
You are right that there does not have to be copying of images, words, etc to be infringment. If I make a spy film with new characters, but pattern it off of Goldfinger, this may be infringing depending on how similar my plot and characters are. But there must indeed by copying: If I came out of a cave and wrote a novel exactly like Jurrasic Park without ever seeing the movie or the book before, then I have not infringed copyright. It is also not enough simply to “allude” to a work; Dante and Randal talking about Return of the Jedi in Clerks does not make it a derivative work, in whole or part, of RoTJ (George Lucas’s attitude notwithstanding). To infringe, there must be a) copying, and b) substantial similarity.
Trailers are certainly derivative works of their films, and the “Shining” trailer certainly is an unauthorized derivative work that is infringing unless the fair use defense applies. I know we agree on this, so I am uncertain what point you are making in your comment.
Matto Ichiban (cd9a4c) — 10/16/2005 @ 7:28 pm[…] Yesterday I received an odd traffic spike from a mysterious source. I received a flood of visitors — several hundred every hour — from people who reached my blog through a Yahoo! search for “shining parody trailer.” (My post about that trailer is the second result in that search.) […]
Patterico’s Pontifications » Shining Parody Trailer Traffic Spike (421107) — 2/9/2006 @ 9:41 am[…] I know I do. But there is also no doubt that it is unlawful under current copyright and trademark laws (Just like other hilarious and creative works in recent years that have had to blatantly flout copyright laws in order to exist). […]
The Southern California Law Blog » Tyranny of Copyright - Part XX (It’s The Fascist Copyright Police, Charlie Brown!) (d08cdf) — 10/30/2006 @ 9:42 pm[…] Just like other hilarious and stunningly creative works, there is also virtually no doubt that it illegally violates a host of copyright and trademark laws (as currently interpreted by our court system). […]
Patterico’s Pontifications » Charlie Brown’s Jihad On The West - A Blogger’s Jihad On Copyright Law (421107) — 10/30/2006 @ 10:15 pmI don’t believe this video breaks the copywrite law. A few years ago, the SC considered a case involving a 2 Live Crew parody of Pretty Woman. They held (roughly) that material can be used without permission, when the point of the parody is to communicate some message.
David (99dea3) — 10/31/2006 @ 4:07 pm