Copyright Q: descriptions of copyrighted works

[Otto]

Some Wikipedia schmuck is making noise at me because he thinks a plot summary I wrote for a film constitutes a copyright violation. He’s claiming that by describing the events of the film in words I’ve created a “derivative work” that infringes on the filmmaker’s copyrighted original ideas. I can’t say that in my brief dips into copyright law I’ve heard this notion before. Does the concept of derivative works extend to written descriptions of films? If so is there some articulated legal standard as to when a description crosses the line?

[RealityChuck]

Nonsense. A derivative work would be if you took the characters of a book or movie and wrote your own book from it (e.g., fan fiction). A derivative work is if a movie is made of a book. Merely summarizing a movie’s plot is not a derivative work under the law.

Every newspaper in the US has capsule summaries of films in their pages, and it’s never a copyright issue. When Roger Ebert (or any other critic) writes a review of a film, he usually summarizes the plot – and there’s no need to ask permission.

This falls squarely under fair use. (Well, technically not fair use – quoting the original work is where fair use applies – but it’s the same thing.)

[panache45]

Totally asinine. If that were the case, you could never write about a book, play, movie, poem, anything really. You could just tell people the title and tell them to see it for themselves. Maybe not even the title. Just point and grunt.

If you were actually selling your summary, as it it were an original work of art, that’d be different.

[Tuckerfan]

If it were a copyright violation, movie studios would sue every reviewer whenever they trashed a film.

[Exapno_Mapcase]

@panache45

If you were actually selling your summary, as it it were an original work of art, that’d be different.

No, it wouldn’t. Your summary is still yours, not a derivative work or in any way dependent on the original. You can do whatever you want with it, including sell it.

[Walloon]

From Westlaw’s summary of Twin Peaks Productions, Inc. v. Publications Intern., Ltd., 996 F.2d 1366 (2nd Cir. 1993):

Owner of trademark and copyrighted television series sued book author and publisher for alleged copyright and trademark infringement, unfair competition, and injury to business reputation. The United States District Court for the Southern District of New York, John S. Martin, Jr., J., 778 F.Supp. 1247, found that book infringed on exclusive right to prepare copies and derivative works, and appeal was taken. The Court of Appeals, Jon O. Newman, Circuit Judge, held that: (1) book containing detailed summary of plots of episodes of television program was not fair use of teleplays; (2) book reported plots in detail which risked impairment of market for copyrighted works themselves or derivative use; and (3) where copyright holder had elected statutory damages, it gave up right to seek actual damages and could not renew that right on appeal.
Affirmed in part; vacated in part; remanded.

From Judge Martin’s published decision:

The major copyright issue is whether a book containing a detailed summary of the plot of a fictional work constitutes fair use of the fictional work.… We affirm as to copyright liability, vacate and remand as to trademark liability, affirm as to copyright damages, and vacate and remand as to attorney’s fees.…

[W]hile the District Court confined its inquiry to literal similarity, we have little doubt that the record supports a finding of substantial similarity through comprehensive nonliteral similarity. Chapter 3 of the Book is essentially a detailed recounting of the first eight episodes of the series. Every intricate plot twist and element of character development appear in the Book in the same sequence as in the teleplays.…

[W]e believe the District Court was correct in determining that the Book constituted a “derivative work based upon the copyrighted work.”

[LSLGuy]

So I guess the question for the OP is: " how detailed is your plot summary vs sht show?" 2 hour movie & 2 paragraph summary, probably OK. 30 minute TV show & 8-page summary, probably not.

[Otto]

I haven’t done an exact word count but I roughly estimate that my summary is under 1000 words on an 85 minute film.

[Exapno_Mapcase]

@Walloon

From Westlaw’s summary of Twin Peaks Productions, Inc. v. Publications Intern., Ltd., 996 F.2d 1366 (2nd Cir. 1993):From Judge Martin’s published decision:

I’ll have to read that decision to see what the real issues were. I don’t have a Westlaw account and I don’t see the full transcript elsewhere.

But my guess is that the case turned on other issues beside mere summary. See the .pdf Fixing Fair Use by Michael W. Carroll

In a number of cases, defendants who have created derivative works based on culturally iconic works erroneously relied on fair use, notwithstanding the transformative nature of their works. See Ty, Inc. v. Publ’n Int’l, 81 F. Supp. 2d 899 (N.D. Ill. 2000) (holding that books about Beanie Babies that used descriptions and photos not a fair use) rev’d 292 F.3d 512 (7th Cir. 2002) (remanding with strong suggestion that some books were entitled to fair use, and some not); see also Toho Co. v. William Morrow & Co., 33 F. Supp. 2d 1206 (C.D. Cal 1998) (holding that book chronicling Godzilla movies not fair use); Castle Rock v. Carol Publ’g Group, 955 F. Supp. 260 (S.D.N.Y. 1997) (finding that quiz book about Seinfeld television program not a fair use), aff’d 150 F.3d 132 (2d Cir. 1998); Paramount Pictures Corp. v. Carol Publ’g Group, 11 F. Supp. 2d 329 (S.D.N.Y. 1998) (holding that book about Star Trek with episode summaries and other material not a fair use); aff’d 181 F.3d 83 (2d Cir.1999); Twin Peaks Prod., Inc. v. Publ’n Int’l, Ltd, 778 F. Supp. 1247 (S.D.N.Y. 1991) (holding that book about the television program Twin Peaks not a fair use), aff’d in part 996 F.2d 1366 (2d Cir. 1993) (affirming copyright holding).

The courts found each of these books to endanger the copyright holder’s market for similar tributes to their popular characters. See Ty, 81 F. Supp. 2d at 906; Toho, 33 F. Supp. at 1217-1218; Castle Rock, 955 F. Supp. at 272 (even if copyright holder likely will not exploit market); Paramount, 11 F. Supp. 2d at 336; Twin Peaks Prod., 778 F. Supp. at 1251.

The world is replete with long detailed summaries of movies, television shows, and books.

The web site Television Without Pity does “recaps” of shows that are longer than the original.

Every major movie star and director has a “The Films of…” book with summaries of their work. (Before the DVDs we Marx Brothers fans had nothing but the books giving long detailed summaries of every movie to rely on.)

Leonard Maltin and dozens of others put out movie guides with summaries ranging from a few sentences to hundreds of words.

TV Guide and others run summaries of every show, without any critical comment.

Cliff’s Notes and its imitators run lengthy summaries of book still under copyright.

The list could run on for pages.

As Carroll’s article shows, there is no coherent law about what Fair Use is. And only the barest few cases, involving the most money, ever make it to a court decision. But if the literal words of Judge Martin’s decision - “Chapter 3 of the Book is essentially a detailed recounting of the first eight episodes of the series.” - were to be the guide then Television Without Pity and hundreds of other sites would be out of business tomorrow and hundreds of authors would have their books seized. (How many other quiz books based on movies or tv shows can you think of? I’ve seen plenty, the Seinfeld decision reference notwithstanding.)

Without a legal guide as to what is acceptable and with enormous precedent as to the unchallenged publication of summaries, what do I suggest? In this specific case I’d find whatever similar summaries already exist and cite them as precedent. More generally, my feeling is that the case law is about exceptions and not the rule. There are too many summary products put out by too many publishers with nervous attorneys for none of them to be legal.

[Swallowed_My_Cellphone]

Question: I thought that in cases where the summary is part of a critique it fell under some kind of fair use provisions. But just a summary or transcript alone would be a no-no because you are just copying the work and are not contributing to any kind of critical analysis or commentary. Am I mistaken? Could someone clarify?

[mhendo]

@Exapno Mapcase

I’ll have to read that decision to see what the real issues were. I don’t have a Westlaw account and I don’t see the full transcript elsewhere.

But my guess is that the case turned on other issues beside mere summary.

You would be correct. From the decision (no link, because i got it through WestLaw):

The appeal presents several copyright and trademark issues arising out of defendants’ publication of a book about plaintiff’s popular television program “Twin Peaks.” The major copyright issue is whether a book containing a detailed summary of the plot of a fictional work constitutes fair use of the fictional work.

<snip>

PIL next argues that the District Court erroneously applied a “literal similarity” test instead of a “substantial similarity” test in concluding that the Book copied the teleplays. We find no error. PIL fails to recognize that the concept of similarity embraces not only global similarities in structure and sequence, but localized similarity in language. In both cases, the trier of fact must determine whether the similarities are sufficient to qualify as substantial.

<snip>

In this case, two chapters of the Book (chapters 3 and 7) consist of extensive direct quotations from the teleplays. Indeed, PIL concedes that 89 lines of dialogue were taken. TPP claims that a far greater amount was taken. But even on PIL’s concession, the District Court was entitled to find that the identity of 89 lines of dialogue between the works constituted substantial similarity.

<snip>

Moreover, while the District Court confined its inquiry to literal similarity, we have little doubt that the record supports a finding of substantial similarity through comprehensive nonliteral similarity. Chapter 3 of the Book is essentially a detailed recounting of the first eight episodes of the series. Every intricate plot twist and element of character development appear in the Book in the same sequence as in the teleplays. The elaborate recounting of plot details consumes 46 pages of Chapter 3.

This section is followed by sample paragraphs from the book, showing the level of detail that could be found in the plot summaries.

The decision continues:

PIL further contends that the District Court erred in finding that the Book infringed not only rights in the teleplays but also the right to make derivative works of the teleplays. The finding that the Book was a derivative work would seem unnecessary to the finding of prima facie infringement. See 2 Nimmer § 8.09 [A], at 8-114 (right to make derivative works is “completely superfluous,” since infringement of the adaptation right necessarily infringes the reproduction right or the performance right). Nevertheless, we believe the District Court was correct in determining that the Book constituted a “derivative work based upon the copyrighted work.” 17 U.S.C. § 106(2) (1988). The Book contains a substantial amount of material from the teleplays, transformed from one medium into another.

Next, the issue of Fair Use is discussed:

Judge Martin applied each of the four statutory factors and found that all of them favored TPP. He thought that the Book was not entitled to favorable consideration as having either an educational purpose or a character as commentary, that the teleplays were creative works entitled to heightened protection, that substantial copyrighted material was taken, and that the Book competed with books currently licensed by TPP as well as possible future derivative works. Because “[f]air use is a mixed question of law and fact,” Harper & Row, 471 U.S. at 560, 105 S.Ct. at 2230, the District Court’s conclusion “is open to full review on appeal,” New Era Publications International, ApS v. Carol Publishing Group, 904 F.2d 152, 155 (2d Cir.), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990), although subsidiary findings of fact will be upheld unless clearly erroneous, see Fed.R.Civ.P. 52(a).

<snip>

PIL’s use of the protected expression in the teleplays consists primarily of summarizing in great detail the plots of the first eight episodes. Inevitably, some identification of the subject matter of a writing must occur before any useful comment may be made about it, and it is not uncommon for works serving a fair use purpose to give at least a brief indication of the plot. Works of criticism, teaching, and news reporting customarily do so. In identifying plot, the author of the second work may or may not be said to have made what Judge Leval has usefully called a “transformative” use. See Pierre N. Leval, Toward a Fair Use Standard, 103 Harv.L.Rev. 1105, 1111 (1990). Such use would occur, for example, if a plot was briefly described for purposes of adding significant criticism or comment about the author’s plotting technique.

In the pending case, PIL’s detailed report of the plots goes far beyond merely identifying their basic outline for the transformative purposes of comment or criticism. What PIL has done is simply to recount for its readers precisely the plot details of each teleplay. Whether such a detailed summary serves a purpose that weighs in favor of fair use requires some consideration of a genre often called “abridgments.”

<snip>

The current Copyright Act confers no absolute right on non-copyright holders to make abridgments. The Act defines a “derivative work” to include an abridgment, 17 U.S.C. § 101 (1988), and gives the copyright holder the exclusive right “to prepare derivative works based upon the copyrighted work,” id. § 106(2) (1988 & Supp. III 1991). An abridgment of a copyrighted work is thus likely to be found to be prima facie infringing. Where, as here, the abridgment serves no transformative function and elaborates in detail far beyond what is required to serve any legitimate purpose, the first factor cannot be weighted in favor of the fair use defense.

There’s more (another 90-odd pages, in fact), but i think that gives a fair idea of some of the key principles and findings underlying the decision.

[Walloon]

@Exapno Mapcase

But my guess is that the case turned on other issues beside mere summary.

An odd thing to say. How much clearer could Judge Martin have been in his decision?

The major copyright issue is whether a book containing a detailed summary of the plot of a fictional work constitutes fair use of the fictional work.… We affirm as to copyright liability, vacate and remand as to trademark liability, affirm as to copyright damages, and vacate and remand as to attorney’s fees.…

@Exapno Mapcase

Every major movie star and director has a “The Films of…” book with summaries of their work.

I’m familiar with the genre, and plot summaries of feature films seldom went beyond a half page of text. Example, from The Films of Frank Sinatra.

@Exapno Mapcase

Leonard Maltin and dozens of others put out movie guides with summaries ranging from a few sentences to hundreds of words.

For Maltin’s guides, “a few sentences” is correct. Which of the movie guide books have plot summaries that run into hundreds of words?

@Exapno Mapcase

TV Guide and others run summaries of every show, without any critical comment.

A few sentences long, and usually based on press handouts by the networks.

@Exapno Mapcase

Cliff’s Notes and its imitators run lengthy summaries of book still under copyright.

Here is where the fair use exception for genuine scholary use comes into play.

[Exapno_Mapcase]

Walloon, you and mhendo need to have a talk.

From the excerpts martin ruled that instead of a creative summary, the PIL made an abridgment, and abridgments are clearly derivative works. Nobody argues that. Whether he was right on this particular case I cannot have any say. But more than mere summary was at work.

When I read copyright cases, there is almost always another issue that the judge uses as the lever to get the case off of fair use. Otherwise, it becomes essentially he said, she said. That’s why I could make my guess sight unseen.