Thursday, June 21, 2007

The Fair Use Project at Stanford Law School

What's going on?
It is quite something to go out of your way to get a person paid for archival footage then get accused of being a crook. Download what they were trying to pass off for free here

Sometimes people try to create chaos so they can become part of it. It only workss if you allow them to control the discourse. I am making a documentary film and the attempt to impose obstacles in the ways of it's making only sweetens the reward for getting it done anyay.

Trailers removed from YouTube
Here is the great victory being claimed. They have had old one minute trailers removed from YouTube claiming they own the copyrights to my originally authored materials that contain materials that are most likely public domain until they prove to me otherwise. They have presented no catalog of detailed ownership of any image. They just bluff their way through. They own copyrights to the REWRITTEN World's Deadliest Fighting Secrets, which I have no interest in. The trailers are not important. I am three quarters done with the film now. I can have new trailers up anytime. I got shooting to do this next few weeks and will add excerpts to the new trailers.

Removal of these old trailers from YouTube are of no consequence. I was about to take them down anyway because I have new trailers, I have footage from the 1964 World's Karate Championships at the Coliseum in Chicago. I have some footage of Dante Brick breaking in Chicago, some Green Dragon Society footage and interviews with individuals at the dojo war.

It will be interesting to see how they get the next trailers removed. I am taking my case to the Electronic Frontier Foundation and to The Fair Use Project of the Center for Internet & Society at Stanford Law School

Here is a quote from the EFF on Fair Use:

4. What's been recognized as fair use?

Courts have previously found that a use was fair where the use of the copyrighted work was socially beneficial. In particular, U.S. courts have recognized the following fair uses: criticism, comment, news reporting, teaching, scholarship, research and parodies.

In addition, in 1984 the Supreme Court held that time-shifting (for example, private, non-commercial home taping of television programs with a VCR to permit later viewing) is fair use. (Sony Corporation of America v. Universal City Studios, 464 U.S. 417 (1984, S.C.)

Although the legal basis is not completely settled, many lawyers believe that the following (and many other uses) are also fair uses:

  • Space-shifting or format-shifting - that is, taking content you own in one format and putting it into another format, for personal, non-commercial use. For instance, "ripping" an audio CD (that is, making an MP3-format version of an audio CD that you already own) is considered fair use by many lawyers, based on the 1984 Betamax decision and the 1999 Rio MP3 player decision (RIAA v. Diamond Multimedia, 180 F. 3d 1072, 1079, 9th Circ. 1999.)
  • Making a personal back-up copy of content you own - for instance, burning a copy of an audio CD you own.

5. Is Fair Use a Right or Merely a Defense?

Lawyers disagree about the conceptual nature of fair use. Some lawyers claim that fair use is merely a defense to a claim of copyright infringement. Although fair use is often raised as a defense, many lawyers argue that fair use can also be viewed as having a broader scope than this. If fair use is viewed as a limitation on the exclusive rights of copyright holders, fair use can be seen as a scope of positive freedom available to users of copyrighted material. On this view, fair use is the space which the U.S. copyright system recognizes between the rights granted to copyright holders and the rights reserved to the public, where uses of works may or may not be subject to copyright protection. Copyright law gives the decision about whether copyright law applies to a particular use in this space to a Federal Court judge, to decide after weighing up all relevant factors and the underlying policies of copyright law.


This is the kind of controversy that drives documentaries. Especially when a person takes your money then tries to accuse you of being a crook.

Ashida Kim
They still hate Ashida Kim. The buyer of the footage is in a business deal with Ashida Kim, he made Kim he same deal he offered them.

Ashida Kim is rapidly becoming the most interesting subject in this documentary, he has been around the world on the name of the Black Dragon Fighting Society. He has been interviewed by TV in Australia and South Africa. He has has competed in a televised match with a South African Kick boxer and dominated the guy. That hatred is fueled by jealousy. No, he is not the leader of the Black Dragon Fighting Society ordained by Dante. Do I care, no. He is a character interesting enough to be in the film and he is not charging me for the interview. He has lots to add to this story. It is my movie, I will put who I want in it.

Funny how their videos were viewed 400 times and Ashida Kims were viewed over 15,000.

Who owns what?
They have not delivered a detailed and cataloged list of what they claim they hold copyright to in stills, mostly pictures shot in Chicago by photographers here. I emailed The Aguiar lawyer, John Francouer, twice over the past year asking for a detailed accounting of what they claim copyright over. All I every got was a notice for use of a name for Karate Schools and the rewritten World's Deadliest Fighting Secrets.

I have been in touch with Ed Ikuta, the photographer who shot most of the images for Black Belt magazine. I am still seeking out the photographer who provided images for other karate magazines. I have been seeking the photographer of the original World's Deadliest Fighting Secrets. I am looking for the person with the negatives. The negative signals clear ownership of an image more than anything else unless it was a work for hire.

I have done due diligence. I have never tried to use the footage in anything but a promotional and educational manner. No the footage or image cannot be used in the final project until I satisfy the distributor that I have all necessary clearances. I am in the production and research stage of the film. Stock footage is paid for in post production after it is chosen and finalized for the final cut of the film. I am not buying an archive. I only need 5 -10 minutes of images. I have that already in stills obtained from Dante Students in Chicago.

I can and will shoot reenactments of footage i need for the film. Much cheaper in time and it eliminates stress.

This stuff is going to make for a great case study. Here is the issue, a one minute video of a film trailer is removed from YouTube because The Fall River Boys claims copyright on anything and everything Count Dante. The copyright they hold is to the book by Bill Aguiar Jr and rights to the name Black Dragon Fighting Society for use in martial arts schools or instruction. YouTube fell for what Ashida Kims ISP fell for in the past. A letter from a lawyer and fear of litigation.

The Purchased Footage
John Creeden, Jr, a direct student of Count Dante was offered $1000.00 for footage he shot of Count Dante and he accepted that offer and was paid. The investor paid $500.00 upfont for the footage site unseen. Meanwhile, his son, John Creeden, III talked to the investor and did what he could to try to change the initial deal by adding some printed materials. The investor was disappointed in the footage because it was clearly shot from a TV screen with a video camera. Due to John Creeden III's unprofessional behavior he made a decision not to go into business with him.

Late Night Calls to 81 year old mothers?
Part of the investors decision was triggered by someone making a call to the investors 81 year old mother in the middle of the night telling "your son is dead." We do not know who made the call, we levelled no accusations. But it came after a heated argument between the investor and John Creeden III who told him how long his arms could reach and his associations with the Irish Mafia in Florida. This was deleted from my blog a few days ago. But I am putting it back after seeing John Creeden III announced online I gave someone $7500.00 for images I got off of http://archive.org. He says he is going for a job in law enforcement. Go figure.

The bulk of the footage sent was of Bill Aguiar, Jr. Footage I obtained long ago by going to archive.org and using the "wayback machine. " Footage that is on existing BDFS DVDs on Ebay and for mail order. Click on this and get for free what they charged someone $1000.00 for.

The only new footage was the wrestling footage.

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News on Fair Use

STANFORD, Calif., February 27, 2007—The Fair Use Project of the Center for Internet & Society at Stanford Law School announced that it has teamed with Media/Professional Insurance and leading intellectual property attorney Michael Donaldson to provide critical support for documentary filmmakers who rely on the “fair use” of copyrighted material in their films. The initiative was announced at the International Documentary Association’s 25th Annual Celebration of Academy Award Documentary Nominees in Beverly Hills February 22, 2007.

“Documentary filmmakers who use copyrighted materials in their work under the ‘fair use’ doctrine of copyright law have come under tremendous pressure in the face of demands for huge licensing fees from copyright holders and overly-aggressive enforcement of copyrights,” explained Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School.

“The mere threat of a lawsuit can keep an important film on the shelf for years,” Lessig said. “This has been a tremendous problem for documentarians because their films depend on the inclusion of copyrighted material they seek to comment on, discuss, and contextualize.”

In order to help solve this problem, the Fair Use Project has announced that it will agree to provide pro bono legal representation to certain filmmakers who comply with the Documentary Filmmakers’ Statement of Best Practices in Fair Use published by the Center for Social Media at American University (www.centerforsocialmedia.org/fairuse). Accordingly, the filmmaker will have counsel in place prior to the release of the film should the filmmaker face claims of copyright infringement. Media/Professional, in turn, will provide insurance coverage against copyright infringement liability in the event the filmmaker proves unsuccessful in defending the claim. In situations where the Fair Use Project is not in a position to promise pro bono representation, Donaldson and other leading intellectual property attorneys will be available to defend claims at favorable rates. Either way, the filmmaker will have counsel in place and protection from liability via insurance.

“This is going to have a very positive impact,” explained Anthony Falzone, executive director of the Fair Use Project. “This initiative will let filmmakers to stand up for their ‘fair use’ rights where they were unable to do so before. They will have top-notch lawyers ready to defend them and insurance in place should they nonetheless face liability. Copyright holders will no longer be able to rely on fear and intimidation. Everyone will be on a level playing field.”

“This is a fantastic development,” said Leib Dodell, president of Media/Professional. “Documentary films are an important source of education, commentary and criticism. Rigidly requiring licenses or releases in all cases does not give filmmakers the flexibility to take advantage of ‘fair use’ in appropriate situations. This program will help us offer affordable insurance coverage in situations where coverage was previously difficult, if not impossible, to find.”

"This is an extraordinary breakthrough for documentary filmmakers," said Davis Guggenheim, director of the Academy Award-winning film An Inconvenient Truth. "We have a clear map to guide our practice and lawyers to defend our work. Media/Professional has set an important example for other insurance companies. I am very hopeful this will change the way documentary films get made."

The initiative will be guided by an advisory board that includes documentary filmmakers Kirby Dick, Davis Guggenheim, Arthur Dong and Haskell Wexler; professors Peter Jaszi and Lawrence Lessig; and intellectual property attorneys Michael Donaldson and Anthony Falzone.

“There is a tremendous amount of credit to be shared here,” explained Falzone. “Peter Jaszi and Pat Aufderheide did a phenomenal job spearheading the development of best practices through the Center for Social Media. Michael Donaldson has worked in this field for years and cultivated an extremely positive relationship with Media/Professional that paved the way for this partnership. Media/Professional has once again proven itself a leader in this field by stepping up to provide a unique product that fills an important need. Several folks at the University of Connecticut School of Law, including Tom Baker, William Breetz, and Peter Kochenburger, were also instrumental in helping us formulate our approach to insurance issues.”

“This is the culmination of a lot of hard work by a lot of dedicated people,” Donaldson said. “We are very excited to help preserve and expand the role of documentary film as an important medium for raising and discussing important social issues.”

About the Fair Use Project
The Stanford Center for Internet and Society's "Fair Use Project" ("the FUP") was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom. The FUP represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights. In doing so, it relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations that are dedicated to advancing the mission of the FUP. The FUP provides an expanding array of assistance to content creators. It has advised prominent creators and distributors of documentary films concerning fair use, defamation, trademark infringement, and other issues relating to the appropriate bounds of free expression. While is impossible to eliminate completely the risk of a dispute, this analysis helps reduce and identify liability and litigation risks before the fact, so that informed decisions can be made.

3 comments:

Anonymous said...

Paying someone for footage (for personal use/viewing) is one thing, the question is was the footage sold with the knowledge that it was going to be used in a film? Or to promote a rival martial arts school that was going to use it to promote themselves?

For example... in those Ashida Kim vids that were posted on youtube the Trademarked words Black Dragon Fighting Society were used, and the vid said that Ashida Kim was the Grandmaster of the BDFS... a fact we all know is false. In one of the vids it's mentioned that Ashida Kim was going to be offering BDFS "membership packs". These vids in particular were meant to defraud the public and make profit by selling BDFS memberships that Ashida Kim has no legal right to be selling!

Even in your promotional vid that is still up, one of the clips is Dante performing the Dance of Death against Bill Aguiar II (not Ashida Kim, who you will never see in one of those old vids). I don't know what the law about using someones image in a film is, but I think you need that persons permission. In this case Aguiar II is deceased, but do you need his families permission?

Exactly for what use/terms were the vids sold under? Is there anything in writing?

I think one of the problems in all this for you Floyd is that people like Ashida and the "rocking" Count (who is also illegally using the BDFS trademark) came before you and already ruffled feathers at the real BDFS. If it weren't for them two (and others) than my guess is that the BDFS would be standing by your side through the whole thing. Their previous fraud and infringement ruined it all for all who follow.

As far as using Ashida in your film, I must tell you he has very little to no credibility among real Martial Artist. While I think there is some merit to mentioning him I truly believe that his presence will only bring down the credibility of the film as a whole. And if he is in your film proclaiming ownership of the BDFS it will only be more evidence of his fraud and pirating.

As to the phone calls and death threats, Irish mafia and so forth that is just stupid. Someone is going to get themselves a prison sentence if that keeps up. If your going to do it, do it, but even any ninja will tell you, don't reveal your plans to the enemy.

floyd webb said...

I think people are making a mistake in assuming that even Ashida Kim believes his own hype. I do not know, I have not talked to the man yet. You level the same accusations against Kim as people did Dante back in the day.

Personally it does not matter to me. I am telling a story. Get over Ashida Kim. The one thing I have learned this past two years. BDFS in Fall River cannot live without their hatred of Ashida Kim. Without Kim they have nothing else to do.

Too bad these guys are all so old. If would be a great addition to the film to see a pay-per-view match for the leadership of the BDFS. I would buy that for a dollar!

floyd webb said...

Oh yeah, no more anonymous posts. You talk trash, let's see who you are.