Letter from AmeriKat

This week’s letter is shorter than usual as the AmeriKat has retreated from the legal streets of London to recuperate on the Guernsey shores, but before she departed she had the following to say ...

“I'm coming for blood, no code of conduct, no law”

For those of you IPKat readers who are not overly familiar with X-Men this quote comes from the AmeriKat’s favourite member of the Marvel gang, Wolverine. Roger Friedman may also be coming for blood or at least a lot of money . Unlike Wolverine, however, Friedman is using the law. The former entertainment correspondent for Fox News who was dismissed after reviewing a pirated version of X-Men Origins: Wolverine has filed a libel lawsuit in the New York Supreme Court alleging that his former employer’s public statements following his dismissal “wilfully, recklessly, intentionally and maliciously” defamed him. Freidman is seeking damages amounting to more than $5 million from Fox News Ltd, its parent company News Corporation and Rupert Murdoch himself. Friedman posted an abbreviated review of the film after watching a leaked version of the X-Men spin-off back in April. In his article he stated that he found

“the whole top 10, plus TV shows, commercials, videos, everything, all streaming away. It took really less than seconds to start playing it all right onto my computer. I could have downloaded all of it but really, who has the time or the room? Later tonight I may finally catch up with Paul Rudd in I Love You, Man. It’s so much easier than going out in the rain!”

Given that News Corporation also owns Twentieth Century-Fox who released Wolverine, it should have been no surprise that Friedman was not to last long at Fox.

Friedman, however, alleges that it was in fact the defendants who were responsible for a series of errors that led to the publication of his review. First, the claim alleges that the copy of Wolverine that was placed on the Internet, had been under the possession and control of and screened by Rupert Murdoch. Second, Friedman alleges that he had emailed in-house counsel Dianne Brandi informing her that he was watching an unreleased version of the film and that Brandi never responded. Third, Friedman’s copy editor Jonathon Passantino approved and subsequently posted the article, all of which Friedman had no control over. On 4 April News Corp. released a statement which stated that Fox News had “promptly terminated Mr. Friedman” and that they “have zero tolerance for any action that encourages and promotes piracy.” Paragraph 37 of the suit alleges that these statements “accused Friedman of the crime of piracy and encouraging and promoting the crime of piracy.”

Interestingly, the suit points to an article published in the The Times in which the journalists “gave detailed instructions of how to pirate movies” and admitted to downloading Quantum of Solace and Iron Man. As many Kat readers will be aware, The Times is also part of Mr Murdoch’s media empire. The claim implicitly argues that, unlike Friedman, those responsible for writing and publishing this article were not publicly denounced as guilty of the act and encouragement of piracy.

The AmeriKat recognizes the film industry considers film piracy a significant problem that demands urgent action, but is intrigued to what is actually underlying Friedman’s dismissal. If Friedman’s allegations are substantiated and there were systematic failures throughout Murdoch’s corporation that led to the dissemination of Wolverine and of the publication of an article which allegedly encouraged piracy of that movie, the AmeriKat wonders if the overly-public dismissal of Friedman was in fact just an act of PR. Now that the cases of Goodman and Mulicare back in the U.K. will not be reopened by prosecutors, Murdoch will have more time to devote to Friedman’s lawsuit. The AmeriKat does not envisage any speedy settlement in this case as a settlement could potentially signal that News Corp does not take movie piracy as seriously as their previously issued statements proclaimed.

No You Can’t!

If the above statement is what Shepard Fairey is alleging in his July 9 filing in the federal court of the Southern District of New York, Obama’s famous “Yes We Can” will likely be Associated Press’s reply. Shepard Fairey is the artist who created the well-known campaign poster of the then presidential candidate entitled ‘Hope’ which used a photograph taken by Mannie Garcia and owned by the AP as its inspiration. The AP sued Fairey back in March for using their copyright image without permission, but Fairey alleges that the AP is not the true owner of the rights in the photograph.

Garcia is himself challenging both AP’s ownership claims and Fairey’s fair use defence. Garcia contends that he was a freelancer, not a full-time employee, of AP’s and therefore owns the copyright in his photograph. . The issue of ownership will be a factual exercise which will be limited and defined during the discovery stage of these proceedings. In the AmeriKat’s opinion the second issue of fair use is where the battleground will be fought by Garcia and AP. The four factors of fair use – purpose/character, nature of the copied work, amount and substantiality, and effect on the market place – all seemingly point to a potentially successful application of this defence. The AmeriKat thinks that this is a case not of a copyright owner actively protecting their copyright from bona fide infringement but a copyright owner recognizing a commercial opportunity for the licensing of derivative works post facto the success of a particular work.

The AmeriKat who, admittedly is not such a secret admirer of Lawrence Lessig’s work (whether she always agrees with him or not), suggests you watch his speech of the New York Library regarding Fairey’s work.