For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 23 April 2014

“Quentin, come here!” -- a plea for Tarantino’s copyright litigation in Europe


Feeling depressed for copyright infringement?
Many people may know the sad story of Quentin Tarantino’s ‘Hateful Eight’. For those who don’t, ‘Hateful Eight’ is [or might have been] the American director’s next movie. After finishing the first draft of the script, Quentin confidentially gave the document to six trusted friends to find out how much they liked it. Instead of obtaining feedback like “Sergio Leone would have never used so much tomato sauce”, “Japan again? Seriously?!?” or “cartoons: never considered it?”, the American director found his script leaked on an American gossip website named Gawker. Not exactly “on”, actually: indeed, Gawker just provided the hyperlink to another website that hosts Tarantino’s script on its servers. That threw the director into the deepest sadness. He told to the Deadline:

"I'm very, very depressed … I finished a script, a first draft, and I didn't mean to shoot it until next winter, a year from now. I gave it to six people, and apparently it's gotten out today."

As anyone knows, the best therapy against depression is filing lawsuits, and that is what Quentin did. After racking his brains in vain to identify the bad apple that provided the gossip website with the precious script, Quentin cut the Gordian knot and directly sued Gawker for copyright infringement at the US District Court for the Central District of California. If all this sounds sad, even sadder appears to be the first instance Court’s outcome. As Variety reports, some hours ago Judge john F. Walter held that Tarantino had failed to “adequately plead facts establishing direct infringement by a third party or facts that would demonstrate that Gawker had either caused, induced or materially contributed to the alleged direct infringement”, and that

“nowhere in these paragraphs or anywhere else in the Complaint does Plaintiff allege a single act of direct infringement committed by any member of the general public that would support Plaintiff’s claim for contributory infringement … instead, Plaintiff merely speculates that some direct infringement must have taken place. For example, Plaintiff's Complaint fails to allege the identity of a single third-party infringer, the date, the time, or the details of a single instance of third-party infringement, or, more importantly, how Defendant allegedly caused, induced, or materially contributed to the infringement by those third parties”

"Quentin, come here!"
The US Judge, however, allowed Tarantino to file an amendment for his contributory infringement claim, which should be filed by the first of May. This Kat feels deep sympathy for the director’s cause and for depression in general. As a few days remain before the first of May deadline expires, he thus asked Merpel to wear the sexy black dress of Anita Ekberg in Fellini’s ‘La Dolce Vita’, dive into the Trevi Fountain and launch a heartfelt plea:

MARCELLO QUENTIN, COME HERE! COME TO DEFEND YOUR COPYRIGHT IN EUROPE!”

Quentin, we might not have as many surfers as California [which might not necessarily be a bad thing], but we know how to recognise a blatant infringement when we see one. And this is your case! Although you may not know it, thanks to the wisdom of International conventions such as Berne and TRIPs, you own copyright in your script here as well, and from the very moment of its creation [we have never requested registration for art works -- that sounds such a trade mark/patent thing, and the same word “copyrighted” is banned from the Continent]. Under the national treatment principle provided by those Treaties, Quentin, you will be treated like one of us – or even better, considered the proverbial European hospitality.


Not that Svensson.
It might be true that some of us are not familiar with the slippery approach to indirect liability for copyright infringement that you have in the US. But still, who cares -- we have Svensson! As football soccer passionate, Quentin, you will think this is about the Swedish Anders -- but it is not. Instead, it is a rather seminal decision of the Court of Justice of the European Union (‘CJEU’) rendered in February.  In that ruling, the CJEU implicitly held that providing hyperlinks to works whose diffusion was not authorised by the right holder amounts to a communication to the public via the EU exclusive right called “making available” [provided by Article 3(1) of the Infosoc Directive, if you fancy delving into it] and, therefore, to a copyright infringement [all you need to know about it is herehere and here].

Got it, Quentin? We would take your rights extremely seriously -- no need to “allege the identity of a single third-party infringer, the date, the time, or the details of a single instance of third-party infringement” or to explain “how Defendant allegedly caused, induced, or materially contributed to the infringement by those third parties”. Gawker provided the link to the platform that unlawfully hosts your work. You are not fine with that. That’s enough to establish copyright infringement in the EU -- and no need to worry about fair use!

Not that Pinckney.
And if you come to litigate in Europe, Quentin, also normally boring procedural issues may bring some great fun! In a 2013 decision on jurisdiction for copyright infringements committed online [the case is “Pinckney”, on which see here], for instance, the CJEU said that courts have jurisdiction to hear copyright infringement cases whenever the website providing the infringing work is “accessible within the jurisdiction of the court seised”. As the link to your script that Gawker provides for is accessible from all EU Countries, thus, you just have to choose the EU State you like more, sharpen your [juridical] Hattori Hanzo sword and sue your enemies wherever you feel most comfortable [various and diverging natural scenarios, human beings, cuisines and types of weather and Judges available].

Why getting depressed for negative verdicts, after having had your work ingloriously stolen? Quentin, do the right thing! Quentin, come to Europe!


[Join the petition! #QuentincometoEurope, or #QCtEU or #whatsthematterwithJapan]



2 comments:

Anonymous said...

I expect he's now wishing he'd made the six copies very slightly different, so he could now tell whose it was that leaked.

Alberto Bellan said...

Poor Quentin, draft scripts with different finals could be a great idea btw...

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