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 Chilling Effects Clearinghouse > Copyright and Fair Use > Notices > Don't Gawk at Tom Cruise Video, Scientology Demands (NoticeID 16887, http://chillingeffects.org/N/16887) Printer-friendly version

Don't Gawk at Tom Cruise Video, Scientology Demands

January 15, 2008

 

Sender Information:
Church of Scientology International
Sent by: [Private]
Moxon & Kobrin
Los Angeles, CA, 90010, US

Recipient Information:
[Private]
Gawker Media
New York, NY, USA


Sent via: email
Re: Unauthorized Use of Stolen Copyrighted Materials

Dear Sir/Madam:

Our office represents the Church of Scientology International ("CSI"), the owner of the copyright of a video of a private CSI religious event filmed in 2004. This is a video work that is exclusively for the use of our client to be shown in its Churches of Scientology throughout the world. This work has never been distributed or authorized to be shown, other than by CSI's sub-licensees, in Churches of Scientology for religious purposes only.

We were recently notified by my client that this copyrighted work had been stolen from one of its Churches.

Please be on notice that Gawker and Defamer are distributing a copy of this work on Gawker's website and are doing so without our client's authorization. This work can be found under the following URLs:

http://cache.gawker.com/assets/video/Cruise_Scientology_video.flv
http://cache.gawker.com/assets/stills/cruisetops5_defamer.flv

Under 17 U.S.C. s 106, it is unlawful to reproduce or distribute someone else's copyrighted work without that person's authorization. See, BMG Music v. Gonzalez, 430 F.3d 888 (7th Cir. 2005) (acknowledging that posting copyright materials on the Internet constitutes copyright infringement citing In re Aimster Copyright Litigation, 334 F.3d 643, 645 (7th Cir. 2003).

Moreover, several criminal laws are implicated since this work was stolen. These include California Penal Code s 484 et seq.: theft; California Penal Code s 496: Receiving stolen property; 17 U.S.C. s 506: criminal copyright infringement; and 18 U.S.C. s 2314: Interstate transporting or transmission of stolen goods.

Accordingly, I am asking for your help in removing this video from your service.

I have a good faith belief, and in fact know for certain, that the posting of this work through your system was not authorized by my client, any agent of my client, or the law.

I declare under penalty of perjury that this information is accurate and that I am authorized to act on behalf of CSI in this matter.

I appreciate your help and prompt attention to this matter.

Sincerely,
[private]
Moxon & Kobrin
[private]
Los Angeles, California 90010
Tel: [private]
Fax: [private]

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FAQ: Questions and Answers

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Question: Who may hold a copyright?

Answer: A copyright ordinarily vests in the creator or creators of a work (known as the author(s)), and is inherited as ordinary property. Copyrights are freely transferrable as property, at the discretion of the owner. 17 U.S.C.


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Question: What kinds of things are copyrightable?

Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.


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Question: What rights are protected by copyright law?

Answer: The purpose of copyright law is to encourage creative work by granting a temporary monopoly in an author's original creations. This monopoly takes the form of six rights in areas where the author retains exclusive control. These rights are:

(1) the right of reproduction (i.e., copying),
(2) the right to create derivative works,
(3) the right to distribution,
(4) the right to performance,
(5) the right to display, and
(6) the digital transmission performance right.

The law of copyright protects the first two rights in both private and public contexts, whereas an author can only restrict the last four rights in the public sphere. Claims of infringement must show that the defendant exercised one of these rights. For example, if I create unauthorized videotape copies of Star Trek II: The Wrath of Khan and distribute them to strangers on the street, then I have infringed both the copyright holder's rights of reproduction and distribution. If I merely re-enact The Wrath of Khan for my family in my home, then I have not infringed on the copyright. Names, ideas and facts are not protected by copyright.

Trademark law, in contrast, is designed to protect consumers from confusion as to the source of goods (as well as to protect the trademark owner's market). To this end, the law gives the owner of a registered trademark the right to use the mark in commerce without confusion. If someone introduces a trademark into the market that is likely to cause confusion, then the newer mark infringes on the older one. The laws of trademark infringement and dilution protect against this likelihood of confusion. Trademark protects names, images and short phrases.

Infringement protects against confusion about the origin of goods. The plaintiff in an infringement suit must show that defendant's use of the mark is likely to cause such a confusion. For instance, if I were an unscrupulous manufacturer, I might attempt to capitalize on the fame of Star Trek by creating a line of 'Spock Activewear.' If consumers could reasonably believe that my activewear was produced or endorsed by the owners of the Spock trademark, then I would be liable for infringement.

The law of trademark dilution protects against confusion concerning the character of a registered trademark. Suppose I created a semi-automatic assault rifle and marketed it as 'The Lt. Uhura 5000.' Even if consumers could not reasonably believe that the Star Trek trademark holders produced this firearm, the trademark holders could claim that my use of their mark harmed the family-oriented character of their mark. I would be liable for dilution.


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Question: What defenses are there to copyright infringement?

Answer: The primary defense to copyright infringement is "fair use." 17 U.S.C.


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Question: What is copyright infringement? Are there any defenses?

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:


  1. the purpose and character of the use
  2. the nature of the copyrighted work
  3. the amount and substantiality of copying, and
  4. the market effect.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.


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Question: What is fair use?

Answer: Fair use is an affirmative defense that can be raised by an individual who is sued for copyright infringement (or an individual against whom a claim of copyright infringement is alleged). See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994). Once the plaintiff has proven that his or her copyright was infringed upon, the burden lies with the defendant who invokes the fair use defense to prove that her or his use of the copyrighted work of another should be legally permitted, notwithstanding the copyright owner's exclusive rights in her work.


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Question: What is the purpose of the fair use defense?

Answer: There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws.

The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times." Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new works by giving them rights that will allow them to make money from their works, and (2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts."

Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing an unauthorized use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws.


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Question: What types of uses does the fair use doctrine protect?

Answer: The language used by Congress in Title 17, Section 107 specifically lists


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Question: Do I need permission from the copyright holder to make fair use?

Answer: No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).


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