Patterico's Pontifications

12/12/2006

Who Knew Talent Agencies Had Such Power? (Another Abuse of Copyright Law)

Filed under: Buffoons,General,Miscellaneous — Justin Levine @ 11:31 am



[posted by Justin Levine – not Patterico]

The Gersh Agency represents comedian Pauly Shore. (Try to suppress your chuckles at this point.)

Pauly Shore gets into a fistfight with a club patron onstage. The incident is captured with murky video footage (I’m assuming with a cell phone camera) and then posted on the Internet.

The footage then suddenly disappears from the Internet after the Gersh Agency apparently claims a copyright interest in the video.

Question(s): How exactly does the Gersh Agency have any sort of “copyright” claim in the footage? Did they stage the fight? Did they record the video themselves?? Even if footage of Pauly Shore’s stand-up routine was captured, how exactly does the Gersh Agency have a copyright interest in that?

If Gersh doesn’t have a valid copyright claim in the footage, then why is Youtube giving in to their threats?

Just another example of how broad notions of copyright law have morphed into a freedom-stifling monster that people don’t even attempt to try and understand anymore. Just have a lawyer write a letter with the words “copyright” and “permission” inserted in it, and then “Poof!” – Entire news stories disappear into the ether because most people don’t want to bother with the hassle.

Comedian Michael Richards should have used this simple strategy to suppress the Laugh Factory video that has caused him so much heartache recently.

The Internet will never mature into its full potential until we have a radical overhaul of copyright – both in terms of the actual law as well as the currently flawed understanding of the notion within the public consciousness.

Update: TMZ.com reports that the whole Pauly Shore event may have been staged/faked. That still doesn’t change the copyright question. TMZ seems to have no problem showing the video on their own site. Do they have a rational view of copyright? Or do they merely have an “exclusive” agreement with Gersh? Curiouser and curiouser…

[posted by Justin Levine]

27 Responses to “Who Knew Talent Agencies Had Such Power? (Another Abuse of Copyright Law)”

  1. This isn’t a problem with copyright, no more than driving drunk is a problem with cars.

    This is a case of YouTube allowing stupid people to make these decisions for them, and with the Gersh Agency’s lawyers recognizing they could get away with it.

    Just because a**holes abuse something does not mean there is something wrong with what they are abusing.

    Kevin Murphy (805c5b)

  2. Just because a**holes abuse something does not mean there is something wrong with what they are abusing.

    Or rather that *this* is not an example of what is wrong. If you want a really stupid result of copyright law, note that the copyright on MS-DOS has 70 years left to run.

    If the idea of copyright is to foster production of works that can then become part of the public domain after a “limited period”, how does “95 years” and “forever” differ with respect to software?

    Kevin Murphy (805c5b)

  3. Kevin – If somebody drives drunk, is it not accurate to suggest that they are “abusing” both alcohol and cars? Is not also reasonable to suggest that laws should be implemented to prevent such abuse?? The difference here is that there are already laws that effectively punish drunk driving. The same cannot be said for specious claims of copyright. Gersh made a specious claim of copyright ownership. It is therefore an “abuse” of copyright law. If somebody lies about being injured in a slip and fall case, it is an “abuse” of our tort laws. This seems like an elementary statement to me, so I guess I ultimately fail to see the point of your first comment. But if you wish to spend more time trying to parse phrases – feel free.

    The bigger issue is WHY Gersh (correctly) assumed that they would be able to get away with this claim. The reason is that there is a “copyright” industry that has sprung up from the legal community that effectively negates many of the limitations of the written law in the minds of the public.

    So I’m sorry, but you are flat out wrong. *This* is indeed a very effective illustration of what is wrong with the current copyright system.

    Justin Levine (20f2b5)

  4. What’s the difference between this and someone going to a Stones concert with a video camera or cellphone camera and then posting the video on the web? Or going to a theatre with a camera and posting the video on the web? Do you think that ought to be okay?

    I ain’t the lawyer, but I think copyright law is pretty well established that a performer has the rights to the video and audio of their performance. There probably is an exception for ‘news’ that takes place during such a performance and this fight (although could anything Pauly Shore be involved with actually merit being called a fight?) might fall into that category… but I don’t know for sure.

    steve sturm (d3e296)

  5. Doesn’t Pauly Shore’s family own a comedy club?

    If it was filmed inside that club…can’t they decide what’s legal to film and what isn’t?

    Neville Chamberlain (80a4fa)

  6. Steve – you don’t need to be a lawyer for this discussion. You simply need to be familiar with the law (which ANYONE can read on the Internet), so don’t let anyone use the “lawyer” cannard to discount your point of view or legitimate questions.

    There is definitely a “news” exception that would apply here, and the fight would certainly fall into that category. If a fight broke out at a Stones concert, the Stones would not have the authority to stop its broadcast.

    However, you seem to be misinformed about one other aspect of copyright law. It only applies to a creative work that is already “fixed” in a tangible medium (i.e., a writing or recording). In the case of a Stones concert, it would be a potential violation to tape the show because you would be “copying” the songs that have already been fixed. What is the fixed creative work in a fight with Pauly Shore exactly? Did he already stage the fight as a film previously? Probably not. Therefore, the one who actually recorded the fight video is the copyright holder in this instance – not Pauly Shore (or his agency).

    Justin Levine (20f2b5)

  7. Steve – To clarify further. If you went and recorded video of the Stones performing live on stage WITHOUT recording audio, there would be no copyright infringement since the act of their gathering on stage is not subject to copyright. Only a RECORDING of their gathering is able to copyrighted. I hope this makes sense. In order to violate copyright, you must first (by definition) make a “copy” of something. That would not apply in a hypothetical scenario of filming the Stones live without sound. You are making the FIRST copy in that instance – not copying another work. Copyright law certainly prevents the unauthorized recording of live performances, but only in regards to previously copyrighted material (i.e., the songs of the Stones).

    Justin Levine (20f2b5)

  8. Justin Levine, I think I understand your points. How does that work with an NFL or MLB game wrt those being news, or for that matter, fixed?

    Dusty (e28a9f)

  9. Yawnie Shore? Oh, sorry, Pauly Shore. The unfunniest person on the planet.

    How in the world he ever made a name for himself is completely beyond me.

    rightisright (2cbc9b)

  10. Dusty – Although some (like me) find the concept very problematic, the fact of the matter is that courts will (at some level) make a value judgement regarding what forms of information they think constitutes “news”. Most won’t think of a sports event as “news”, unless something unusual happens at it. I think that line or reasoning sucks – but there it is.

    As far as the copyright of a live sports event goes – there are many people who will try to convince you that merely playing a live game somehow gives it “copyright”. But this is false. The NFL certainly has a copyright over the broadcast recording that they make of it. But is it a violation of copyright for you to make your own cell phone video of it? I don’t see how it is. Candian courts certainly agree with me [ http://en.wikipedia.org/wiki/Canadian_Admiral_Corp._v._Rediffusion ] , but I’m not sure if U.S. courts have spoken clearly on this subject. Again – no “fixation”, no copyright.

    Justin Levine (20f2b5)

  11. How come we can’t film the Supreme Court in action?

    Surely their gathering constitutes news.

    Neville Chamberlain (80a4fa)

  12. Surely their gathering constitutes news.

    There’s no right to film every arguably newsworthy gathering of arguably famous or influential people. When the President conducts closed-door meetings with his Cabinet, that might be “news,” but that doesn’t mean you get to film them.

    NYC 2L (4c4727)

  13. Further, Supreme Court proceedings are conducted in public- anyone can go and watch oral argument.

    But in any event, this all irrelevant to the point of the original post, which was about copyright.

    NYC 2L (4c4727)

  14. Before the Republicans got greedy, corrupt and insane, one of their best talking points was that the governement should operate under the same rules us plebes do.

    The Supreme Court performs with a public audience, just like Pauly Shore. If they can ban filming of their act, so can Pauly.

    Neville Chamberlain (80a4fa)

  15. As to the general comments of filimg events: A private establishment (or even public one such as the Supreme Court) can certainly have rules prohbiting cameras and/or filming.

    But the question is: If you disregard those rules and manage to film an event clandestinely, would the owners of the establishment have the power to stop your tape from being distrubuted after the fact because of copyright violations?

    The clear answer is: NO. They can simply toss you out of the building if they catch you in the act of filming and breaking their rules of conduct.

    Justin Levine (20f2b5)

  16. So, if you manage to rob a bank without being caught, you should be able to spend the money in peace?

    Neville Chamberlain (80a4fa)

  17. I think Neville should be dubbed “Master of the Inapposite Analogy.”

    NYC 2L (4c4727)

  18. Justin–

    Either you misread what I said, or you are intentionally being obtuse. Are you saying that because someone might drive drunk that CARS are a problem? Because you are saying that if someone uses a completely WRONG interpretation of copyright law, unsupported in any way by statute, the LAW is still a problem. Which is a patently silly position for you to be taking.

    What you have is some lawyer A-hole bullying an idiot employee at YouTube, with some LSD-fantasy idea of what the law is, and you are holding the law to account because you don’t like law even when correctly applied. Even though this situation has nothing to do with the law.

    What a pile of wasted bits.

    Kevin Murphy (805c5b)

  19. Pauly wishes he could copyright getting his lights punched out by a redneck. Its the only funny performance he’s ever given. . .

    C Student (c949f7)

  20. Justin is right on this. Plintiffs have taken the right of publicity and carried it over into copyright law and have found courts who agree with them. I hope he will do a future post on how trademark law is being abused to shield things which are not protectible under copyright law or no longer protectible under patent law — such as buildings. Worse than that, even. There was a case in Chicago a few years ago in which a skyline photographer was enjoined from selling photographs which included a certain building because the building’s outline was the business’s (carried on in that building) registered trademark.

    nk (956ea1)

  21. Kevin Murphy – It is YOU who are being obtuse. In tackling your “car” analogy, I clearly suggested that if there were no such things as DUI laws, then obviously that would be a problem as far as the LAW goes. The absence of legal remedies can be a problem as far as the LAW goes. (It obviously wouldn’t mean that there was a problem with CARS, though driving drunk would still bviously constitute an “abuse” of how one operates a car.)

    There are no adequate legal remedies for specious cease and desist demands invoking copyright law. This allows for many to essentially bully people into silence and self-sensorship. Therefore, there IS problem with the law in this regards.

    I have re-read both our previous comments in this regard in order to honestly assess if my writing was somehow unclear. I don’t beleieve it is. I am surprised that you can’t grasp the relatively simple point that I have made and remain seemingly fixated on your flawed “car” analogy. But I invite others to read our comments and make up their own minds.

    Justin Levine (20f2b5)

  22. i was a pontificator before patterico was born, wondering if i can claim exclusive copyright to “pontifications”.

    assistant devil's advocate (165b45)

  23. Don’t performer’s have right ot their work? I can’t just record it can I? Or am I confusing this with something, and it only works for music?

    actus (bb04e2)

  24. Thanks for the response, Justin.

    Dusty (e28a9f)

  25. Venues often have terms which are “agreed to” by the patron, upon purchase of a ticket.
    Often, these terms are printed on the ticket, or posted at the box office.

    For many venues, this forbids the use of cameras, unless authorized.

    Desert Rat (ee9fe2)

  26. Actus –

    Apart from fair use concerns, performers otherwise have an exclusive right to “publicly perform” their work. But that work must be recorded first, or otherwise be “fixed” in a tangible medium of expression. So no. it doesn’t just apply to music. It could just as easily apply to a group of actors performing a play that had been previously written (thus “fixed” in a medium of expression). However, if you record their performance, they only have a right to prevent your recording of their copyrighted works that they prerform.

    As an example, if rock band X only has valid copyrights in the songs they composed, then you are not infringing on copyright if you take a silent video of them on stage WITHOUT a sound recording. They have no copyright to their appearance on stage – only their songs. They may stil try to claim “copyright infringement” in order to bully you into not taping – but they would be wrong .

    This can be a tricky concept to try and explain adequately in print, so I hope that you see what I am getting at.

    Justin Levine (965646)

  27. Seems from the latest news that it was all a skit. That would give them the right to pull the video, since it is considered part of his act. On a side note, Pauly got his start from his mother, Mitzi, who owned the Comedy Store in LA.

    JD (e2b34a)


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