Richard Herd
Forum Replies Created
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EVERETT C. DAVIS; BARBARA J. MOONEYHAM, Plaintiffs-Appellees, v. MERIDIAN FILMS, INCORPORATED; BENSON, BENSON & HENRIKSEN, The Partnership; ANNA L.M. BENSON; CYNTHIA BENSON; MARK HENRIKSEN, Defendants-Appellants. EVERETT C. DAVIS, Plaintiff-Appellant, and BARBARA J. MOONEYHAM, Plaintiff, v. MERIDIAN FILMS, INCORPORATED; BENSON, BENSON & HENRIKSEN, The Partnership; ANNA L.M. BENSON; CYNTHIA BENSON; MARK HENRIKSEN, Defendants-Appellees. EVERETT C. DAVIS, Plaintiff-Appellant, v. VIDEO GROUP, LLC; BODYLAB, LLC; ATHENA, LLC, Defendants-Appellees. EVERETT C. DAVIS, Plaintiff-Appellee, v. VIDEO GROUP, LLC; BODYLAB, LLC; ATHENA, LLC, Defendants-Appellants.
No. 02-2469, No. 03-1026, No. 03-1346, No. 03-1493
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
CASE SUMMARY
PROCEDURAL POSTURE: Appellant videographer of exercise videos sued appellee producers of the videos, alleging that the producers infringed the videographer’s copyrights as either author or co-author of the videos. The videographer appealed the order of the United States District Court for the District of South Carolina, at Columbia, which granted summary judgment to the producers, and the producers cross-appealed the order denying their motion for attorney fees.
OVERVIEW: The videographer provided services in the production of certain videos under a compensation and royalty agreement, and the producers subsequently produced new videos which were composed of excerpts from the previous videos that were linked together with new footage. The videographer contended that he was entitled to additional royalties for the producers’ use of his copyrighted works. The appellate court held that, in view of the videographer’s admissions that the producers were responsible for choreography, directorial duties, final decisionmaking in the editing process, and creation of the concept underlying the exercise videos, the videographer could not be considered the author or the co-author of the videos for copyright purposes. However, the videographer’s position was sufficiently reasonable to justify the denial of the producers’ request for an award of attorney fees.
OUTCOME: The orders granting summary judgment to the producers and denying the producers’ motion for attorney fees were affirmed.
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HI-TECH VIDEO PRODUCTIONS, INC., Plaintiff-Appellee, v. CAPITAL CITIES/ABC, INC., Defendant-Appellant.
No. 93-1090
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
OVERVIEW: Plaintiff registered a copyright in a travel video as a work made for hire. Defendant used portions of the video on its television program without plaintiff’s permission. Plaintiff filed suit against defendant alleging copyright infringement. The trial court entered judgment in favor of plaintiff. On appeal, the court held that because the video was produced in part by independent contractors, it was not a work made for hire and, therefore, the copyright in the video as a work made for hire was invalid. The court reversed and remanded the case with instructions to enter judgment in favor of defendant.
OUTCOME: The court reversed and remanded the case with instructions to enter judgment in favor of defendant, holding that because the video was produced in part by independent contractors, it was not a work made for hire and, therefore, the copyright in the video as a work made for hire was invalid.
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another interesting case:
LOS ANGELES NEWS SERVICE; ROBERT TUR, Plaintiffs-Appellants, v. CBS BROADCASTING, INC.; COURTROOM TELEVISION NETWORK, Defendants-Appellees
OVERVIEW: The copyright holder owned copyrights to videotape footage of the beating of a truck driver during the 1992 Los Angeles riots. Plaintiffs claimed that a video news service owned by the broadcasting company’s predecessor had distributed the copyrighted works to recipients including the network. The network used a few seconds of the footage to promote news coverage and as part of the introduction to one of its programs. Plaintiffs had agreed to a stipulated dismissal of their initial suit against defendants, but refiled their complaint after the parties failed to reach a settlement. The appellate court found, inter alia, that the district court erroneously excluded certain evidence on the basis of the stipulation agreement. As a videotape of allegedly infringing footage and its identifying slate were not hearsay and were sufficiently authenticated, there was enough admissible evidence to preclude summary judgment as to whether the broadcasting company was liable for infringement. However, the network’s use of the footage was protected as fair use given some transformative use, the factual nature of the work, the small portion of footage used, and market considerations.
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I think it’s reasonable to assert that the details of the imagined case you mentioned have not been tested. I could only find two cases that use the term “video producer.” The cases are:
- Dastar Corp. v. Twentieth Century Fox Film Corp., No. 02-428 , SUPREME COURT OF THE UNITED STATES, 539 U.S. 23,
and
- Mynatt v. Lockheed Martin Energy Sys., No. 06-6319, UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT, 08a0153n.06.
Here’s the quote from DASTAR:
It could be argued, perhaps, that the reality of purchaser concern is different for what might be called a communicative product–one that is valued not primarily for its physical qualities, such as a hammer, but for the intellectual content that it conveys, such as a book or, as here, a video. The purchaser of a novel is interested not merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and indeed primarily, in the identity of the creator of the story it conveys (the author). And the author, of course, has at least as much interest in avoiding passing-off (or reverse passing-off) of his creation as does the publisher. For such a communicative product (the [**2048] argument goes) “origin of goods” in § 43(a) must be deemed to include not merely the producer of the physical item (the publishing house Farrar, Straus and Giroux, or the video producer Dastar) but also the creator of the content that the physical item conveys (the author Tom Wolfe, or–assertedly–respondents).
Here’s the quote from MYNATT:
Mynatt’s initial job in IMS was video aide, a weekly salaried position. In 1989, his position was reevaluated as video associate, a monthly salaried position. In 1990, Mynatt was promoted to Video Producer I. In that position, he produced and directed videotaped programs for DOE facilities at Oak Ridge. He retained that position until his termination in September 1999. At the time of his termination, Mynatt’s position was titled Media Producer II, salary grade 3.
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I paid an attorney $250 to ask that question. He said, You don’t own the work. I said but…the client. He said, if you want legal advice and a defense position my retainer is $5,000.
I’ll look it up in Lexus Nexus. But that’s a tough database and I ain’t no lawyer.
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Another weird problem that keeps happening to me is the MBAs who feel they need to beat the contract. Why do they do that?
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CC is like George Steinbrenner calling pitches from the luxury box.
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What is your deliverable?
Digital signage is weird. I’m not even sure how to begin. Basically, know your deliverable and your market. $250/deliverable is my rate. For digital signage is often a mograph background and a Scala template. The mograph is 1 deliverable. The Scala template is another. The vendor of the signage system (that I’m very familiar with) charges about double that rate because their deliverable delves into code banging and auto-executables in VBS. If you’re moving into VBS then you should charge more.
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Fast turn around disposable market…
Yeah it’s true. My client are flaky, slow, who
Cares about quality literati. -
X is better than 7.
Magnetism is genius.
There’s so many keyboard shortcuts and mouse overs that I can’t explain any of it.
My first project in X was (now) an award winning short film, a project I was paid a decent amount of dough. It was a 90:1 shooting ratio. This after making literally a thousand ads:mograph, Mark I was super frustrated the first couple of days. Just importing footage was weird. I read the manual a lot. And from a time budget point of view it actually took three times as long. Now I get it. And that issues is resolved asto create a net gain.
Workflow: if you’re gonna test it, you gotta make. Deliverable. Phuquing around with it won’t provide the deliverable customers need, the impetus from you to finish.
In other matters: is my x-ray still around?
Hope you’re well. Nice to read you here too.
Typed on iPhone. Plz mentally redact as necessary