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Friday, June 06, 2008

Can Yoko sue "Expelled" under foreign copyright laws?



Famous last words (is he saying "I don't deserve to die" or "I could have kept myself out of this chair if I were a lawyer"?)

A coin-operated, do-it-yourself electric chair. "When a coin is inserted, and the switches are pulled, the condemned man twitches and jerks in the chair. Sparks fly and the odor of burning hair is emitted from the panel."

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As a result of the lifting of the temporary restraining order in the federal lawsuit against "Expelled," the way is now clear for the movie to open as scheduled in Canada on June 6. Some people are now asking if Yoko can sue the "Expelled" producers under copyright laws in foreign countries.

You will never see me say "I am not a lawyer," often abbreviated "IANAL." In fact, the expression "IANAL" is one of my pet peeves. Telling laypeople that they can't understand the law sends a message to young people that they shouldn't bother to get educations. When I don't know something about the law, I look it up, just like a lawyer would.

Wikipedia says about the Berne Convention,

The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement about copyright . . .

Since almost all nations are members of the World Trade Organization, the Agreement on Trade-Related Aspects of Intellectual Property Rights requires non-members to accept almost all of the conditions of the Berne Convention.

As of April 2008, there are 163 countries that are parties to the Berne Convention

The Berne Convention requires its signatories to recognise the copyright of works of authors from other signatory countries (known as members of the Berne Union) in the same way it recognises the copyright of its own nationals, which means that, for instance, French copyright law applies to anything published or performed in France, regardless of where it was originally created.

The USA became a member of the Berne Union in 1989.

One of the questions that arises is: if "Expelled" is shown or sold in a foreign country, does that country's copyright law apply just to the movie itself or does it also apply to copyrighted works contained in the movie?

I investigated further by looking at the provisions of the Berne Convention.

Articles 5(1) and 5(2) says,

(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

One of "the rights specially granted by this Convention" is "fair use." The applicable parts of Article 10 [Fair Use], say,

(1) It shall be permissible to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

- - - - - - - -

(3) Where use is made of works in accordance with the preceding paragraphs of this Article, mention shall be made of the source, and of the name of the author, if it appears thereon.

Article 10, quoted above, says nothing about applying a foreign country's laws to claims of fair use -- all that is required is that the borrowing of other works be "compatible with fair practice" and that the extent of the borrowing "does not exceed that justified for the purpose." "Expelled"s use of "Imagine" easily satisfies these criteria -- if "Expelled"s use of "Imagine" is not fair use, then nothing is fair use. Also, it is reasonable to expect that countries should give "full faith and credit" to the originating country's determination of fair use, because otherwise chaos would result. Also, Article 10(3) above is satisfied by the credits shown at the end of the "Expelled" movie.

Article 6bis says,

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

"Expelled" did not distort, mutilate, or otherwise modify "Imagine." As for "other derogatory action," "Expelled" did not misrepresent John Lennon's actual views, particularly in view of John Lennon's statement -- made several years prior to recording "Imagine" -- that the Beatles were "more popular than Jesus."

Article 19 [Right to Claim Greater National Protection] says,

The provisions of this Convention shall not preclude the making of a claim to the benefit of any greater protection which may be granted by legislation in a country of the Union.

I think that the above loophole would be unavailable to Yoko Ono in all or almost all foreign countries because all or almost all foreign countries would consider this to be fair use. Also, this loophole appears to contradict Article 5(2) -- cited above -- in regard to fair use. And under Article 33 [Disputes among countries], the USA may be able to dispute another country's finding that this is not fair use.

In short, IMO Yoko Ono cannot dispute "Expelled"s fair use claim in foreign countries.
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7 Comments:

Anonymous Voice in the Urbanness said...

> Telling laypeople that they can't understand the law sends a message to young people that they shouldn't bother to get educations. <

It would seem that it sends just the opposite message. They should get an education.

> When I don't know something about the law, I look it up, just like a lawyer would. <

Another bad example. The lawyers know where to look it up (not just a word search) and they then understand what they see.

Saturday, June 07, 2008 6:54:00 AM  
Anonymous Michael said...

I can answer the question if Yoko can sue "Expelled" under foreign copyright laws...If the United States has a treaty with other nations concerning those copyright laws, then she can sue, if the US doesn't have a treaty, she will not be able to make a case in court.

Saturday, June 07, 2008 12:59:00 PM  
Blogger Larry Fafarman said...

>>>>> If the United States has a treaty with other nations concerning those copyright laws, then she can sue, if the US doesn't have a treaty, she will not be able to make a case in court. <<<<<

What ever gave you that idea?

Saturday, June 07, 2008 6:20:00 PM  
Blogger Larry Fafarman said...

ViU driveled,
>>>>> It would seem that it sends just the opposite message. <<<<<<

So I suppose when that voting registrar with an 8th-grade education told the black Ph.D that he (the Ph.D) was unable to interpret the Constitution, that sent a message to blacks that they should all get good educations so that they would be eligible to vote.

>>>>>Another bad example.<<<<<

No, it's another good example, idiot.

>>>>> The lawyers know where to look it up <<<<<<

Not always. I gave that example of a whole team of lawyers who were kicked out of federal court when they sued California over the "smog impact fee." They presumably would have been allowed to stay in federal court if they had used my argument that California "left the sphere that is exclusively its own" (Parden v. Terminal Railway) by basing the fee entirely on the state's special status under federal auto emissions laws and regulations. Also, one of their experts testified in state court that the fee required the approval of the US EPA. They also failed to sue the EPA in federal court (I did). But they were not entirely at fault -- my discovery of Parden v. Terminal Railway was a fluke -- I was just browsing aimlessly through Supreme Court opinions. Then there was another case where an attorney was suing under the First Amendment's freedom of expression clause -- I pointed out that the Administrative Procedures Act applied and he heartily agreed. He won in federal district court but lost in the federal appeals court -- an APA argument might have made the difference.

>>>>> not just a word search <<<<<<

Wrong. Not all good arguments can be found by keyword searches, but keywords can often be magic words, like "open sesame" and "abracadabra." Examples of important keywords are "nonjusticiability" in regard to the evolution controversy and "parodies and satires" in regard to fair use. Those keywords have resulted in several long articles on this blog. However, there are some legal ideas that I would not know how to find with keywords. One such idea is the argument from Parden above. Other such ideas are the following:

(1) "The cardinal rule is that repeals by implication are not favored." -- from Posadas v. National City Bank of New York. Of course, it is fair to assume that a law should not be considered to be a repeal of an earlier law if the legislature did not show any express intention of repeal -- but it is so much better if the Supreme Court can be cited in support of that assumption! I have so often seen laws that say "notwithstanding any other provision of law" -- that statement is invalid according to that Supreme Court opinion. If legislators are not aware of how a new law could affect an old law, then the old law should not be affected.

(2) Litigants invoking laws in their support should not be required to show that those laws were intended to benefit them. I wish I had the Supreme Court citation. For example, abortion clinic protesters have been prosecuted under the RICO (Racketeer Influenced and Corrupt Organizations) Act. I doubt that RICO was ever intended to be used for that purpose. Another example was my interpretation of a federal court rule -- I argued that where a plaintiff refuses to accept an out-of-court settlement offer of relief equal to or greater than the maximum relief that could possibly be provided by the court, the judge may dismiss the case for "failure to state a claim upon which relief can be granted," FRCP Rule 12(b)6). Duh. Fatheaded Ed Brayton kicked me off his blog permanently because he disagreed with that interpretation.

Good attorneys are constantly looking for legal principles to be added to their bags of tricks.

>>>>> and they then understand what they see. <<<<<<

Attorneys and others who do legal research (e.g., me) don't always understand what they see because what they see can be unintelligible, nonsensical, or simply out of context. For example, key quotations in annotated law books are often hard or impossible to understand when out of context, and as a result attorneys often don't know what alleys to go up or they go up blind alleys. Or the attorneys may understand the key quotation but later find that the quotation is inapplicable to their situations for some reason.

Because attorneys' time is so expensive, I am strongly in favor of the idea of litigants doing a lot of their own legal research under the guidance of an attorney and with the assistance of law librarians (this is an example of "unbundled" legal services).

Saturday, June 07, 2008 11:06:00 PM  
Blogger Bill C said...

This comment has been removed by the author.

Sunday, June 08, 2008 5:42:00 AM  
Blogger Bill C said...

Comment Deleted

Sunday, June 08, 2008 5:42:00 AM  
Anonymous Voice in the Urbanness said...

What is it that Larry so fears?

Sunday, June 08, 2008 9:15:00 AM  

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