Category Archives: Film

Does Interference with Someone Filming a Documentary About Police Interaction with Gang Members in Public Violate the Rights Afforded to that Person Under the NJ or the U.S. Constitutions?

In September 2012, the Appellate Court of New Jersey held that “the right to engage in news gathering for the purposes of creating a documentary concerning a matter of public interest is protected by the First Amendment and the New Jersey Constitution.” Ramos v. Flowers, No. A-4910-10T3 (N.J. Super. Ct. App. Div. September 21, 2012).

In that case, a documentary filmmaker (“Plaintiff”) was working on a project about gangs in Trenton, New Jersey.  On several occasions, a police officer (“Defendant”) made Plaintiff stop filming public encounters between the police and gang members. Id. at 17-19.  For example, on one occasion Plaintiff went to the Trenton Public Library to film a police investigation regarding a meeting between gang members on its premises. Id. When Defendant noticed he was filming, Defendant took his camera from him and put it in his police vehicle. Plaintiff claimed that Defendant threatened to lock him up if Defendant saw him again.
Id.at 18.

Plaintiff filed a complaint against Defendant in New Jersey Superior Court, Law Division (“Lower Court”). Plaintiff alleged in his complaint that Defendant interfered with his free speech rights under both the New Jersey (“State”)  and United States (“U.S.”) Constitution.  Id. at 19. In response to his complaint, Defendant filed a motion for summary judgment.

Summary judgment allows a court to determine the outcome of a case without proceeding to trial. Basically, it may be granted when it was clear to the court, based upon the pleadings (e.g. complaint and answer), that there is no issue of material fact and judgment can be determined as a matter of law.  The Lower Court granted Defendant’s motion for summary judgment resulting in a dismissal of Plaintiff’s case before it could proceed to trial. Plaintiff then appealed to the Superior Court, Appellate Division (“Court”).

First, the Court addressed the First Amendment to the U.S. Constitution, which states in part,

Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. l; Id. at 24.

The Court cited cases standing for the proposition that the First Amendment protects the media’s right to gather news.  Otherwise the freedom of press could be severely deprived of its essential purpose.  Id. at 24-25. For example, one purpose of the First Amendment is to protect the right to receive information. This includes the right to gather news from any source by means within the law.  Id. at 30.

Next, the Court addressed Plaintiff’s claim based on the New Jersey State Constitution, which states,

Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right.  No law shall be passed to restrain or abridge the liberty of speech or of the press.

N.J. Const. art. I, ¶ 6; Id. at 25.

The people have the right freely to assemble together, to consult for the common good, to make known their opinions to their representatives, and to petition for redress of grievances.

N.J. Const. art. I, ¶ 18; Id.

Citing those provisions, the Court noted that the State Constitution provided broader protection for freedom of speech than the U.S. Constitution. Further, it observed that the freedom of press is strongly protected under the State Constitution. Id. at 25-26. It explained that a documentary about a subject of public interest, such as urban gangs, was a form of investigative journalism, and the process of preparing such a documentary was a form of news gathering. Thus, as a recognized form of journalism, a documentary is entitled to the strong protection afforded to the press.  Id.

In support of that proposition, the Court elaborated that the filming of government officials engaged in their duties in a public place, including police officers performing their responsibilities, fits comfortably within those principles.  Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal constitutional interest in protecting and promoting the free discussion of governmental affairs. Id. at 30. Accordingly, those activities are protected by the First Amendment of the United States Constitution and the New Jersey State Constitution. Id. at 26.

Accordingly, the Court reversed the Lower Court’s dismissal of Plaintiff’s complaint. However, it did
note that Plaintiff’s activity was subject to reasonable place, time and manner restrictions, as long as the restrictions were: content neutral; narrowly tailored to serve a significant governmental interest; and left open ample alternative channels for communication of the information. Id. at 32.

Will the Use of Common Elements and Themes Leave Filmmakers Susceptible to Copyright Infringement Suits?

Tales of drug-dealing, jail time and growing up in the ghetto are too common to be considered original elements of a copyrighted work.

The United States District Court for the District of New Jersey recently granted hip-hop artist 50 Cent’s motion to dismiss a suit brought by a plaintiff who sued the rapper for copyright infringement. Winstead v. Jackson, 2011 U.S. Dist. LEXIS 107560 (D.N.J. 2011).

The plaintiff, Shadrach Winstead (“Winstead”), claimed that 50 Cent (also known as Curtis Jackson) (“Jackson”) used words and plot themes from Winstead’s copyrighted autobiography “Preacher’s Son – But the Streets Turned Me Into a Gangster” (the “book”) in a CD/DVD set produced by Jackson in 2009. Winstead asserted that several elements from the autobiography – including jail time for the main characters, committing crimes for money, and the death of a parent – were also present in Jackson’s production “Before I Self-Destruct” (the “film”). Winstead also claimed that portions of dialogue were taken from his book and used in the script of the film.

Jackson filed a motion to dismiss the suit, arguing that Winstead failed to state a claim upon which relief can be granted. The Court granted Jackson’s motion, determining that the elements that Winstead argued he had copyright protection over were so common that they could not be considered copyrighted material. The decision relied on a copyright law doctrine known as “scenes a faire” which essentially means that there are certain elements to a work that are not protected by copyright since they are essential to express the character of the work itself.

To establish a claim of copyright infringement, a plaintiff must establish:

  1. ownership of a valid copyright; and
  2. unauthorized copying of original elements of the plaintiff’s work.”

Dun & Bradstreet Software Servs. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d. Cir. 2002).

Though Winstead was able to prove ownership of a valid copyright in his book, the Court found that he could not prove any copying of original elements from his work. “[G]eneral plot ideas and themes lie in the public domain and are not protected by copyright law,” the Court stated. Id. at 6. “In addition, all situations and incidents which flow naturally from a basic plot premise, known as scenes a faire, are not entitled to copyright protection.” Id.

While the Court acknowledged the similarities between the two works’ characters, themes and settings, it held that these common features have been part of the public domain for some time and have provided the themes for many films and television programs before. “[A]ny common themes of a young male whose tumultuous upbringing leads him to resort to a life of crime and violence in order to gain power and money are scenes a faire.” Id. at 7.

Winstead also argued that Jackson lifted dialogue from his book – including phrases such as “ringing,” “stash,” and “get the dope, cut the dope” – for use in the film. However, the Court also found this language too common to be the protected under Winstead’s copyright. “The average layman, who would be observing these phrases in the context of an overall story or song, would not regard these minute snippets as unique or protectable,” the Court held. Id. at 9.

The Court’s decision is significant because it demonstrates that there are limits to how much copyrighted material is protected. Winstead’s copyright protection over his book did not extend to plot themes and generic language used in it. The Court’s holding gives copyright holders an example of elements in the public domain that are not included within the scope of copyright protection.

Comments/Questions: gdn@gdnlaw.com

© 2011 Nissenbaum Law Group, LLC

A Federal Court Analyzes Whether One Manuscript Allegedly Violates the Copyright Protection of Another

A Florida Federal Court recently discussed the standard for determining if one manuscript violates the copyright of another. Brian Dodd v. Chris James Woods, Film Ranch International, Inc., 2010 WL 2367140 (M.D.Fla. 2010).
The Underlying Facts
The plaintiff in that case, Brian Dodd (“Dodd”), alleged several causes of action which “arose after Defendant Chris Woods allegedly stole Dodd’s manuscript entitled “Anonymity” and gave it to Defendant Film Ranch International, who allegedly used it in producing a film entitled “Brainjacked.” Id. at 1.
The Legal Standard for Alleging Copyright Infringement
The Court explained that “[t]o establish a prima facie case of copyright infringement, ‘two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.’ Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). ‘To satisfy Feist’ s first prong, a plaintiff must prove that the work … is original and that the plaintiff complied with applicable statutory formalities.’ Bateman v. Mnemonics, Inc., 79 F.3d 1532, 1541 (11th Cir.1996) (citations omitted). A plaintiff may show copying by demonstrating that the defendants had access to the copyrighted work and that the works are ‘substantially similar.’ Oravec v. Sunny Isles Luxury Ventures, L. C., 527 F.3d 1218, 1223 (11th Cir.2008) … .If the plaintiff cannot demonstrate access, he still may establish copying by showing that the works are “strikingly similar .” Id. (citing Corwin v. Walt Disney Co., 475 F.3d 1239, 1253 (11th Cir.2007)).

“Substantial similarity exists “where an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Id. (quoting Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 829 (11th Cir.1982)). In particular, a copyright plaintiff “must establish specifically that the allegedly infringing work is substantially similar to the plaintiff’s work with regard to its protected elements.”   Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir.2000). ‘Thus, in an action for infringement, it must be determined both whether the similarities between the works are substantial from the point of view of the lay [observer] and whether those similarities involve copyrightable material.’ Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir.1999).” Id. at 3.

The Court Determines That the Complaint Fails to State a Claim for Copyright Ownership Because it Failed to Allege Facts that the Manuscript was Substantially Similar

The Court held that the complaint failed to state a claim for copyright ownership because “[i]n a copyright action, the similarity between two works must concern the expression of ideas, not the ideas themselves. Oravec, 527 F.3d at 1224. Here, Dodd has only generally alleged that the two works are similar in concept and method, and that a character from Brainjacked has the same name as the main character from Anonymity. As an initial matter, copyright protection does not extend to Dodd’s ideas, concepts or methods. See 17 U.S.C. § 102(b) (“In no case does copyright protection for an original work of authorship extend to any idea, … method of operation, concept, … regardless of the form in which it is described, explained, illustrated, or embodied in such work.”). Therefore, aside from a character from each work sharing a name, (which by itself could not amount to substantial similarity), Dodd has failed to allege any other specific aspects of Anonymity and Brainjacked that are similar.” Id. at 4-5



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