De: Bruno Buys
<bruno.grupos@gmail.com>
Para: Lista Debian <debian-user-portuguese@lists.debian.org>
Enviadas: Domingo, 10 de Maio de 2009
15:21:55
Assunto: Re: Documentário sobre software Livre.
Renato S. Yamane wrote:
> Em 08-05-2009 16:45, Daniel Bianchi escreveu:
>> Não consegui colocar no You Tube porque disseram que eu estava violando
>> os direitos da Fox. Isso porque usamos um lance dos Simpisons.
>> Bom está ai... quem se interessar veja, assim poderemos discutir.
>>
http://www.mininova.org/tor/2571016>
> Entre em contato com a Fox, diga que foi um trabalho universitário... Muito provavelmente eles lhe fornecerão o direito de reprodução de um trecho curto.
>
> Att,
> Renato
>
>
Sobre entrar em contato com a Fox, e sobre usar trecho dos simpsons, me lembrei dessa situação aqui. Vocês podem ler na íntegra em 'Free Culture', referência
fundamental da
cultura hacker. Veja em free-culture.org. Para baixar o livro: free-culture.org/freecontent.
O trecho colado aqui começa na página 95.
"CHAPTER SEVEN: Recorders
Jon Else is a filmmaker. He is best known for his documentaries and
has been very successful in spreading his art. He is also a teacher, and
as a teacher myself, I envy the loyalty and admiration that his students
feel for him. (I met, by accident, two of his students at a dinner party.
He was their god.)
Else worked on a documentary that I was involved in. At a break,
he told me a story about the freedom to create with film in America
today.
In 1990, Else was working on a documentary about Wagner’s Ring
Cycle. The focus was stagehands at the San Francisco Opera. Stagehands
are a particularly funny and colorful element of an opera. During
a show, they hang out below the stage in the grips’ lounge and in
the lighting loft. They make a
perfect contrast to the art on the stage.
During one of the performances, Else was shooting some stagehands
playing checkers. In one corner of the room was a television set.
Playing on the television set, while the stagehands played checkers and
the opera company played Wagner, was The Simpsons. As Else judged
it, this touch of cartoon helped capture the flavor of what was special
about the scene.
Years later, when he finally got funding to complete the film, Else
attempted to clear the rights for those few seconds of The Simpsons.
For of course, those few seconds are copyrighted; and of course, to use
copyrighted material you need the permission of the copyright owner,
unless “fair use” or some other privilege applies.
Else called Simpsons creator Matt Groening’s office to get permission.
Groening approved the shot. The shot was a four-and-a-halfsecond
image on a tiny television set in the corner of the
room. How
could it hurt? Groening was happy to have it in the film, but he told
Else to contact Gracie Films, the company that produces the program.
Gracie Films was okay with it, too, but they, like Groening, wanted
to be careful. So they told Else to contact Fox, Gracie’s parent company.
Else called Fox and told them about the clip in the corner of the one
room shot of the film. Matt Groening had already given permission,
Else said. He was just confirming the permission with Fox.
Then, as Else told me, “two things happened. First we discovered
. . . that Matt Groening doesn’t own his own creation—or at least
that someone [at Fox] believes he doesn’t own his own creation.” And
second, Fox “wanted ten thousand dollars as a licensing fee for us to use
this four-point-five seconds of . . . entirely unsolicited Simpsons which
was in the corner of the shot.”
Else was certain there was a mistake. He
worked his way up to
someone he thought was a vice president for licensing, Rebecca Herrera.
He explained to her, “There must be some mistake here. . . .
We’re asking for your educational rate on this.” That was the educational
rate, Herrera told Else. A day or so later, Else called again to
confirm what he had been told.
“I wanted to make sure I had my facts straight,” he told me. “Yes,
you have your facts straight,” she said. It would cost $10,000 to use the
clip of The Simpsons in the corner of a shot in a documentary film about
Wagner’s Ring Cycle. And then, astonishingly, Herrera told Else, “And
if you quote me, I’ll turn you over to our attorneys.” As an assistant to
Herrera told Else later on, “They don’t give a shit. They just want the
money.”
Else didn’t have the money to buy the right to replay what was playing
on the television backstage at the San Francisco Opera.To
reproduce
this reality was beyond the documentary filmmaker’s budget.At the very
last minute before the film was to be released, Else digitally replaced the
shot with a clip from another film that he had worked on, The Day After
Trinity, from ten years before.
There’s no doubt that someone, whether Matt Groening or Fox,
owns the copyright to The Simpsons. That copyright is their property.
To use that copyrighted material thus sometimes requires the permission
of the copyright owner. If the use that Else wanted to make of the
Simpsons copyright were one of the uses restricted by the law, then he
would need to get the permission of the copyright owner before he
could use the work in that way. And in a free market, it is the owner of
the copyright who gets to set the price for any use that the law says the
owner gets to control.
For example, “public performance” is a use of The Simpsons that
the
copyright owner gets to control. If you take a selection of favorite
episodes, rent a movie theater, and charge for tickets to come see “My
Favorite Simpsons,” then you need to get permission from the copyright
owner. And the copyright owner (rightly, in my view) can charge
whatever she wants—$10 or $1,000,000. That’s her right, as set by
the law.
But when lawyers hear this story about Jon Else and Fox, their first
thought is “fair use.”1 Else’s use of just 4.5 seconds of an indirect shot
of a Simpsons episode is clearly a fair use of The Simpsons—and fair use
does not require the permission of anyone.
So I asked Else why he didn’t just rely upon “fair use.” Here’s his reply:
The Simpsons fiasco was for me a great lesson in the gulf between
what lawyers find irrelevant in some abstract sense, and
what is crushingly relevant in practice to those of us actually
trying to make and broadcast
documentaries. I never had any
doubt that it was “clearly fair use” in an absolute legal sense. But
I couldn’t rely on the concept in any concrete way. Here’s why:
1. Before our films can be broadcast, the network requires
that we buy Errors and Omissions insurance. The carriers require
a detailed “visual cue sheet” listing the source and licensing
status of each shot in the film. They take a dim view of
“fair use,” and a claim of “fair use” can grind the application
process to a halt.
2. I probably never should have asked Matt Groening in the
first place. But I knew (at least from folklore) that Fox had a
history of tracking down and stopping unlicensed Simpsons
usage, just as George Lucas had a very high profile litigating
Star Wars usage. So I decided to play by the book, thinking
that we would be granted free or cheap license to four seconds
of Simpsons. As a documentary producer
working to exhaustion
on a shoestring, the last thing I wanted was to risk legal
trouble, even nuisance legal trouble, and even to defend a
principle.
3. I did, in fact, speak with one of your colleagues at Stanford
Law School . . . who confirmed that it was fair use. He also
confirmed that Fox would “depose and litigate you to within
an inch of your life,” regardless of the merits of my claim. He
made clear that it would boil down to who had the bigger legal
department and the deeper pockets, me or them.
4. The question of fair use usually comes up at the end of the
project, when we are up against a release deadline and out of
money.
In theory, fair use means you need no permission. The theory therefore
supports free culture and insulates against a permission culture.
But in practice, fair use functions very differently. The fuzzy lines of
the law, tied to the extraordinary liability if lines are
crossed, means
that the effective fair use for many types of creators is slight. The law
has the right aim; practice has defeated the aim.
This practice shows just how far the law has come from its
eighteenth-century roots. The law was born as a shield to protect publishers’
profits against the unfair competition of a pirate. It has matured
into a sword that interferes with any use, transformative or not."
-- To UNSUBSCRIBE, email to
debian-user-portuguese-REQUEST@lists.debian.orgwith a subject of "unsubscribe".. Trouble? Contact
listmaster@lists.debian.org