Posted by: Peter Hall
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 If not, then all of this is a moot point as the Work was unpublished and thus right to Fair Use is all but negated entirely.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.