Why Bully Free Publicity?

Posted by Peter Hall - April 28th 2009 @ 9:47 am

I am trying to wrap my head around the cease and desist email I received this morning from an unidentified party demanding that I remove the trailer for HISSS, which I had embedded from original host Twitch in the post Trailer for HISSS may Prove 2009 the Year of the Creature Feature.  This was the first time HND has ever been party to a legal complaint, which I found to be conversely confounding and flattering.

According to the complainant, who provided no credentials, proof of ownership or even who he represented, “[I] neither asked for nor received permission to use the Work nor to make or distribute copies, including electronic copies, of same, I believe you have willfully infringed our rights under 17 U.S.C. Section 101 et seq. and could be liable for statutory damages as high as $150,000 as set forth in Section 504(c)(2) therein.”

Now I am no longer of the mindset that I, as a blogger, have free right to anything on the Internet.  I may have been that way when I was 15, but as an adult I’ve developed a healthy respect for intellectual property.  However, as a donating member of the Electronic Frontier Foundation, I’ve also got the acumen to know what is and isn’t within my rights as a user of the Internet.  There are several unsolved variables floating in the equation that led to the email I, and apparently other webmasters, received before determining whether my embed of the HISSS trailer was or was not fair use.  Most importantly, did Twitch owner and genre champion Todd Brown have permission to first post the trailer?  If not, then all of this is a moot point as the Work was unpublished and thus right to Fair Use is all but negated entirely.

Assuming he did have permission, I am within my rights to then embed the trailer here.  I realize that film trailers are copyrighted material and exempt from fair use as far as promotion of sale and rentals is concerned, as in the case of Video Pipeline v Buena Vista Home Entertainment, however such a precedent is not applicable to HorrorsNotDead.com.  Ignoring the obvious fact that HND neither sells nor rents movies nor has any interest in doing so, HND is a 100% non-profit website.  One day I hope it will make money, but until that hypothetical day, I have yet to squeeze a single nanopenny from HND.  I run no advertising and profit no money from Amazon’s Affiliate program.  It costs me money to run this site.  I pay the hosting bill, I pay the domain registration every year so I can put in unquantifiable amounts of time with the hope of helping out complete strangers, which is why it personally pisses me off when some complainant attempts to muscle up a smattering of legalese and alleges I have willfully infringed a third party’s rights.

I have since taken down the Work in question, though not out of fear of “statutory damages as high as $150,000″.  I took it down because Fuck Them.  I have nothing against HISSS or Jennifer Lynch or Bollywood.  I am still eagerly looking forward to the movie and this incident is not going to fraction my opinion of the film once it finally comes out, but if the unknown, unidentified They have a problem with Joe Schmoe Non-Profit giving their commercially viable property free advertising, then by all means am I glad to never again give their commercially viable property free advertising.

I’ve seen my talk of a work in the past help give a film customers it would otherwise not have had.  Hell, I can’t even count how many people have emailed me to ask what movie the HND banner image is taken from (again, fair use) and since went on to track down a copy of CREEP.   I’ve learned enough people trust my opinion, and I will never discount that honor, but I am not an idiot.  I don’t think the coverage of a film on HND is going to ever make or break anyone’s project.  I’m not protesting this email because I think I’ll have any effect on the grand exposure of HISSS.  I just fail to understand why anyone – and again, I have no knowledge of who the person who wrote that email represents – would go out of their way to squash free publicity, especially when it was positive.  Nevermind that this person is oblivious to the four-factor test that determines whether something is or is not fair use, I just do not understand the logic.  That trailer was so good I’d of covered HISSS everytime the title popped up, now you’ll never see me mention it outside of review should the chance to see the Bollywood flick ever arise.

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  1. Brian
    April 28th, 2009 | 10:12 am | #1

    Not to defend whoever that douchebag is, but I’m pretty sure it doesn’t matter that HND is non-profit.

    The rest of your argument may be valid; I haven’t studied copyright law in like 4 years. I’d be happy to mail you my textbook (or I’ll just make photocopies of all the pages and send those!).

  2. April 28th, 2009 | 10:20 am | #2

    From my research in the past, it does matter that HND is non-profit. Not that a non-profit has free reign to do whatever the hell they want, but that status makes clear that posting the video was not done with the intention of diverting profit from the copyright holder, as covered under the “purpose and character of the use”.

  3. Matt Wells
    April 28th, 2009 | 10:39 am | #3

    Look at the bright side, the fact you’re pissing someone off is showing that you are getting to be well known.

  4. April 28th, 2009 | 10:41 am | #4

    The same thing happened on HorrorNews.net when I wrote for them, albeit under slightly different circumstances. They yanked a trailer from Fangoria, gave due credit (as far as I can recall), and Fangoria sent them a complaint telling them they had to take it down.

    Of course, instead of obliging and apologizing to one of the largest providers of news and information on the horror genre online, they called them assholes.

    Has Twitch taken the trailer down yet?

  5. April 28th, 2009 | 10:51 am | #5

    Twitch still has it up. Maybe they sent the email? If so, they may wanna get rid of the embed code their player offers up so encouragingly.

  6. Brian
    April 28th, 2009 | 11:29 am | #6

    Just because you are “non-profit” doesn’t mean you aren’t potentially diverting profit from the copyright holder. Again, this stuff isn’t fresh in my memory, but “purpose and character of use” is just one of the factors and, if I remember correctly, courts usually don’t care that the infringer is non-profit.

  7. John LaTour
    April 28th, 2009 | 11:37 am | #7

    Damn you bloggers and your newfangled Internet buzz!

  8. April 28th, 2009 | 8:36 pm | #8

    I see the trailer has been taken off Twitch as well now. I can totally understand the need to C&D someone who’s carrying your entire film online or offering up torrents or something, but why in hell would you want people to stop sharing your trailer?

    Isn’t that the purpose of the trailer, to get it out there so people can become interested in your film? Reading the blogs is how I get almost all of my new film information and to not allow them to show off some new trailers might mean that I may never come across some of these great films.

  9. TJ
    April 30th, 2009 | 11:52 am | #9

    fking pirate. no wonder Comcast hates you.

  10. April 30th, 2009 | 1:00 pm | #10

    Congrats on the legal complaint. I’ve gotten a few over the years (though not from companies), and I always find them to be mostly amusing and, as you say, flattering, with, with just the tiniest sprinkle of anxiety (of the worst-case scenario worry type).

    It sounds stupid to anyone who spends any time online, but I suppose a fair number of people in the industry still don’t. Or maybe they do, and they see how quickly bad buzz can spread (faster than good buzz, it seems), so they’re hopelessly paranoid about controlling what’s released? Dunno. Either way, a lot of people with disconcerting positions of power in the industry still don’t have their head around this stuff.

    No amount of content control can really save a bad film, and people are wising up and learning to become suspicious of the flicks that try. More importantly, ALL publicity is good if the underlying film is good, too. I dunno whether or not the notice you received is an example of simple idiocy, ignorance, or a lack of confidence in the underlying product, but whatever it is, shame on them.

  11. joefitz
    May 2nd, 2009 | 12:25 pm | #11

    You know peter, pirate bay only got a year in prison. the worst they could do to you is send you to a scared straight kind of program for internet pirates where some grizzled O.G. yells at you about how limewire ruined his life.

    I say demand credentials, run the video, and continue giving it the coverage that you would normally give. why should a misguided legal threat change your (i hesitate to say journalistic integrity) views on a particular film?

    Were this to be “creature feature” of the year, as you so boldly claimed, your readership should be aware of it.

    that being said, im still gonna boycott the film i wasnt going to see anyways. (just cuz im O.G. like that when it comes to my homies)

  12. joefitz
    May 2nd, 2009 | 12:26 pm | #12

    also, everyone should donate to EFF and the CBLDF (if possible). they shared booth space at wondercon, and they were awesome.

  13. May 4th, 2009 | 3:42 am | #13

    They shouldn’t have alienated you like that by sending such a threatening email. They’ll regret it because it didn’t do anything but make them look unreasonable and petty (especially since you were actually doing them a favor). I wish I had posted on my site though. Getting something like that’s gotta be an ego boost for you AND your site.

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