Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: October 13, 2014
The Firm
201-896-4100 info@sh-law.comI read about an interesting case today that not only involves a personal favorite character of mine, but serves to illustrate the way that even old law can continue to change and advance through court interpretation. U.S. District Judge James Otero declined to dismiss a lawsuit brought by MGM – the holder of the James Bond copyright – against Universal. The latter studio is in the early stages of producing a film called Section 6, a spy film that intends to focus on the early days of British spy agency MI-6.
MGM alleges that the film bears similarities in theme, character, plot and dialog to the films featuring Mr. Bond, and as such should be killed. Screenwriter Aaron Berg has made fair use and de minimis arguments, while Universal advanced the argument that the film has not yet even received a green light, making litigation about it a “patent waste of resources.”
That Otero opted not to dismiss the lawsuit is in itself not remarkable, given that he is expected to take the plaintiff’s allegations as true for the purposes of this stage. However, his reasoning and further statements appear to be indicative of the strong case that MGM might have. We will discuss these statements after a brief recap of the legal arguments made by the defendants.
Fair use
I’ve mentioned this before, but copyright law does not entitle the owner to be the sole user of a certain work in every situation. Neither would this be desirable – we largely agree as a society that parody should be allowed. When determining whether someone has the right to “fair use,” courts consider the following four factors:
De minimis
There are some cases in which the amount of material that the defendant has copied is so small that the court doesn’t need to consider the above four factors. Keep in mind that the actual size of the material copied isn’t always relevant. Even a small part can be considered significant if it is somehow central to the “heart” of the copyrighted work.
Otero’s ruling
Otero could have simply declined to dismiss the lawsuit and deal with the trial when it occurred, but chose to write a lengthy opinion that looks bad for Universal’s prospects.
Otero noted that the phrase ‘Bond. James Bond’ appears in the defendant’s work, making Berg’s de minimis argument unlikely. He also mentioned a 1995 Honda commercial that was determined to be substantially similar to the James Bond movie, and wrote that “In the current case, Section 6 bears more similarities than the Honda commercial.”
Regarding Universal’s argument that such litigation is a waste of resources at this stage, Otero went even further. Perhaps in light of U.S. District Judge Dolly Gee’s decision to allow a similar case to move forward, ruling that the creation of a script alone can constitute ‘intermediate copying’ in the absence of a film or final script, Otero wrote the following:
“Far from being theoretical or abstract, according to Plaintiffs’ allegations, Universal possesses the right to use the screenplay, and has hired various people for the development of the motion picture project. Those types of ‘transitory’ film-making product make the copyright issues ripe for review. Universal’s assertion that it does not intend to infringe Plaintiffs’ copyright is also irrelevant because good faith is not an excuse for copyright infringement.”
The opinion itself is so redacted that it could pass for a spy agency’s document itself, making it difficult to tell precisely what or how much was copied as an observer. It seems clear, however, that Universal will have to mount an extremely strong defense or dramatically change its script if it wishes to produce this film.
This isn’t the first time that MGM had legal issues protecting one of their most prominent films. Check out the article Raging Bull Case Headed to the U.S. Supreme Court
As a New York entertainment attorney, Check out some of my other posts regarding the legal aspects of copyright in the entertainment industry:
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Breach of contract disputes are the most common type of business litigation. Therefore, nearly all New York and New Jersey businesses will likely have to deal with a contract dispute at least once. Understanding when to file a breach of contract lawsuit and how long you have to sue for breach of contract is essential […]
Author: Brittany P. Tarabour
Closing your business can be a difficult and challenging task. For corporations, the process includes formal approval of the dissolution, winding up operations, resolving tax liabilities, and filing all required paperwork. Whether you need to understand how to dissolve a corporation in New York or New Jersey, it’s imperative to take all of the proper […]
Author: Christopher D. Warren
Commercial leases can take a variety of forms, which is often confusing for both landlords and tenants. Understanding the different types, especially the gross lease structure, is important when selecting the lease that best suits your needs. One key distinction between lease types is how rent is calculated and paid. This article addresses the two […]
Author: Robert L. Baker, Jr.
Over the past year, brick-and-mortar stores have closed their doors at a record pace. Fluctuating consumer preferences, the rise of online shopping platforms, and ongoing economic uncertainty continue to put pressure on the retail industry. When a retailer seeks bankruptcy protection, a myriad of other businesses are often impacted. Whether you are a supplier, customer, […]
Author: Brian D. Spector
Since his inauguration two months ago, Donald Trump’s administration and the Congress it controls have indicated important upcoming policy changes. These changes will impact financial services policies and priorities. The changes will particularly affect cryptocurrency, as well as banking rules and regulations. Key Regulatory Changes in Cryptocurrency For example, in the burgeoning cryptocurrency business environment, […]
Author: Dan Brecher
The retail sector has experienced a wave of bankruptcy filings over the last year. Brick-and-mortar businesses in financial distress include big-name brands like Big Lots, Party City, The Container Store, and Vitamin Shoppe. When large retailers seek bankruptcy protection, they are not the only businesses impacted. Landlords can be particularly hard hit. While commercial landlords […]
Author: Brian D. Spector
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!