Accidental Infringement in the Real World

Wasn’t I just blogging about how easy it is to accidentally infringe copyright with computers?  Well, reality TV shows and news-shows have the same problem because they record sound and images (which is making a copy) in public, where you wouldn’t expect there to be copyrighted material–except that sometimes there is.

This complaint is a case in point.  The defendants are producers of MTV’s Real World series.  Part of the appeal of shows like this is that the cameras follow the shows‘ protagonists out into public.  Thus, for example, the folks walking around in the background aren’t hired extras but are ordinary folks going about their business.  The producers can only exercise control over the background in the finished product through editing or very careful camerawork.

But what if, in the course of shooting one of these scenes, the cameras record a copyrighted work in the background?  For example, what if the protagonists go to a club and copyrighted music is playing the background?  The recordation could be completely accidental or incidental.  Simply by having the cameras rolling, the producers are making a copy of the song.  If they then include the background music in a broadcast of the show, they are also making a public performance of the song.  As we’ve discussed, the recorder’s intent is irrelevant, except to the issue of damages.

Savvy producers know all about this and are careful to either edit out the music or get a license for the music (which is relatively easy and inexpensive because there’s a pretty fluid market for music).  But even savvy people can miss something.

In this case, they missed the plaintiff’s “Shadow Dancers.”  If you go clubbing a lot, maybe you’ve seen these.  You can also get some visuals here (warning: less than ideal webpage design).  The Shadow Dancers are moving images of silhouetted women dancing, which are projected against some sort of flat surface, like a nearby wall.  These are marketed to dance clubs, which like them for their, um, ambience.  They look cool, or sexy, or whatever.  The plaintiff created the moving images, placed them on DVDs for sale.  The plaintiff also has copyright registrations for the DVDs’ content.

According to the Complaint, these Shadow Dancers were being projected in clubs (and even outside clubs in the streets) while the Real World’s protagonists were at the clubs.  It could be that there was no way to avoid recording the Shadow Dancers, or the cameramen simply didn’t notice them in the background; or, alternatively, the producers thought the Shadow Dancers looked cool and wanted to include them in the background.  Regardless, it’s a safe bet that the cameramen and the producers had no idea that these images were protected by copyright.

The producers aren’t doomed.  They have a couple of possible defenses.  It might be a fair use, or the Shadow Dancers might have appeared in such small snippets that the use was too negligible to matter (known as a “de minimus” use).  You really can’t tell unless you’ve studied the clips in question.  Even then, as we’ve discussed earlier, you still might not have a clear sense about whether it’s a fair use.

As crazy as it sounds, though, the Shadow Dancers folks have a viable case–maybe even a strong one (although perhaps not an very lucrative one).  That might not seem to make sense.  After all, the producers merely filmed what anyone could see and hear in public.  Surely, you’re allowed to do that–or else we’d be at risk for copyright violation any time we took a picture on vacation.  And, surely, no one is going to use snippets of The Real World with the Shadow Dancers in the back ground as a substitute for the full Shadow Dancers experience.  But copyright is a technical law (as I might have mentioned before), and it doesn’t always make intuitive sense.  Perhaps the court will take these points into account in making its fair-use determination, but in themselves, they aren’t defenses.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.