..Gary Dretzka
..Noah Forrest
..Leonard Klady
..R.J. Matson
..David Poland
..Douglas Pratt
..Ray Pride
..Michael Wilmington

January 12, 2004

Are Mel Gibson And Newmarket Films
Trying To Censor An NYU Student Filmmaker?

On December 22, Movie City News linked to a satirical short that turned up in our inbox. The film used the music and style of Quentin Tarantino's Kill Bill, Volume 1 trailer with visuals from the first trailer of Mel Gibson's The Passion of The Christ. The result is an obviously fake, but highly entertaining trailer called, Kill Christ (which can be found at http://homepages.nyu.edu/~scs273/01.mov).

Eventually, we found out that the auteur behind the parody was an NYU student named Spencer Somers and that he cut the piece together in a day. The film was posted on an NYU student homepage, which made the film susceptible to less than the highest level of legal protection under the First Amendment.

Our headline then was, "If Anyone At Icon Still Has A Sense Of Humor (or perspective), They Will Not Force This Movie Off The Web."

On December 23, the following e-mail was sent to NYU's manager of Information Technology Services:

Date: Tue, 23 Dec 2003 11:53:33 -0500
Author: "Kim Gilligan" <realaddressremovedbymcn@newmarketfilms.com>
Subject: use of copyrighted material

RE: http://homepages.nyu.edu/~scs273/01.mov


The images used to make this movie are copyrighted materials and were
NOT licensed to any student or faculty member for this use. Please have
it removed immediately, or let me know who I would need to speak to in
order to have it removed.

Thank you

Kim Gilligan
Newmarket Films

So much for a sense of humor.

Actually, Bob Berney of Newmarket was contacted by Jeff Wells in January and he indicated to Wells that the concern was only on the "oh, those college kids" level. Wells spoke to Newmarket's Beth English, who suggested that the film had not been received so well by the Mel contingent. Neither person suggested that a note requesting the removal of the piece had already been sent.

It took NYU Information Technology Services 19 days to contact Spencer.

1/11/2004

Dear Spencer,

We have received a report that you are sharing a copyrighted file via your homepages.nyu.edu web account. See complaint below for details.

The distribution of copyrighted material without the permission of the copyright owner is a violation of federal copyright law. In addition, such actions are a violation of the Rights and Responsibilities agreement that you signed when you activated your account. See:

http://www.nyu.edu/its/policies/respon.html

Please write back to confirm that you understand these responsibilities and that you have taken down the file. If we do not hear back from you, we may take further disciplinary action, including blocking that file until the matter is resolved.

If you have any questions, feel free to contact me by e-mail or at the phone number below during regular office hours.

Thank you for taking care of this.
===================================================
Jane DelFavero
Network Security Manager

The policy statement eluded to in the e-mail to Spencer states:

I will respect the rights of copyright owners, and, when appropriate, obtain permission from owners before using or copying protected material, including, but not limited to, software, documents, images, and multimedia objects.

But the fact is, unless Newmarket can show real potential damages to their product or Spencer starts charging for access to the short, they have no real authority to force this satire off the web. And even then, it's not clear that they can stop the free exhibition. Satire of this nature is covered by The Fair Use Doctrine. To Wit:

‘Fair use’ as a judicially created doctrine was originally applied (beginning with the classic case of Folsom v. Marsh in 1841) to the situation where one author quoted another author for purposes of comment or criticism, thus using the copyrighted work of an earlier author in a manner that added value to it. There was here no duplication of the earlier work for its own sake; any such copy of a merely duplicative kind was proscribed as piracy. Sandford G. Thatcher, University of Toronto Press

There are other recent examples of challenges to the freedom of expression by way of copyright law, in books like The Wind Done Gone and on a website that made fun of the sexual ambiguity of The Teletubbies.

In response to a query over the weekend, Newmarket's Bob Berney wrote:

We’re not trying to censor this parody, just tell NYU or this student that we didn’t allow our official teaser trailer to be used or modified.

They can make their own parody if they want using their own ‘knock-off’ materials, not ours.

He later wrote:

We’re not threatening or censoring, I don’t see any case coming - although I don’t think it will be on the DVD!

Hopefully, NYU will allow the piece to remain on Spencer's student website, given Mr. Berney's reasonable attitude. If not, I'm sure it will find another home on the web sooner than later.

- David Poland