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After filing a copyright lawsuit in August, three street artists are going for the jugular by pushing for an immediate halt to the distribution of Terry Gilliam‘s Zero Theorem, which allegedly includes scenes of a burnt-out chapel covered by a “blatant misappropriation” of a giant street mural in Buenos Aires, Argentina.
If a federal judge in Illinois were to grant a preliminary injunction, it might cause Voltage Pictures and other producers a chance to recoup their money on the science fiction film. It would also come as a huge shock to Hollywood that unlicensed scenery has the potential to incite that kind of trouble.
Fortunately for the producers, the odds favor they will fend off an injunction. Nevertheless, as street artists become more assertive about their rights, the arguments made in the past week by attorneys for the defendants deserves some consideration.
Two of the street artists —”Jaz” (Franco Fasoli) and “Ever” (Nicolas Escalada) — hail from Argentina while the third —”Troy Lovegates, aka Other” (Derek Mehaffey) — is from Canada. Thanks to this, the case doesn’t necessarily turn on U.S. standards by which graffiti gets copyright protection. Still, the artists do have to show evidence of the validity of their copyright, and to that end, they’ve pointed to the fact that the two Argentineans registered the Buenos Aires mural now titled Castillo with the country’s Copyright Office in 2013.
That’s not enough, write attorneys for the defendants.
They say that the street artists are hurt by the fact that they haven’t registered copyright in the U.S., that the Canadian isn’t listed on the Argentina copyright registration, and that under the law of Argentina, the failure to register the mural — completed in 2010 — before November 15, 2013, is fatal to the plaintiffs’ claims. That’s because Zero Theorem was initially released at the Venice Film Festival in September 2013. Thus, according to the defendants, “There are no valid claims against third parties for copies of the author’s work that were made prior to registration.”
For good measure, defendants’ lawyers add in a footnote that there is no indication that the title of the work was affixed to the work nor does the mural identify the names of the authors. It’s mentioned that “OTHERJAZEVER” appears on the lower right-hand corner of the mural. Apparently, the defendants are dismissive of the use of pseudonyms in the street artist community.
Maybe there will be some discussion of the international copyright treaty called the Berne Convention for the Protection of Literary and Artistic Works and the nuances of copyright law in Argentina, but even if the plaintiffs manage to show prima facie evidence of the validity of the copyright, they’ll still need to demonstrate a likelihood of prevailing in the case before obtaining an injunction.
The producers of Zero Theorem also point to a fair use defense, and this one is a bit unusual. When most people think of fair use, they probably think of the first factor — “purpose and character of use” — and measure the transformative nature of the allegedly infringing work in question.
Not this time.
“Of those [fair use] factors, the most important is usually the effect of the use upon the potential market for or value of the copyrighted work,” says defendants’ legal papers. “Here, Plaintiffs present no evidence of any expectation of monetary gain based on the Work. Plaintiffs concede that the Work is displayed on a public street in Buenos Aires, Argentina. There is no evidence that Plaintiffs were financially motivated to create the Work, or that they sought any financial gain whatsoever from the Work. What’s more, Plaintiffs do not even speculate that the imagery in the Film even possibly reduced the value of the Work, or that it even possibly injured their long-range commercial opportunities.”
The argument is another way of saying that street artists aren’t economically motivated, although the recent commercial success of some might undercut that one. (In the lawsuit, the plaintiffs did say they are each able to demand tens of thousands of dollars for commissioned works to collectors.) Voltage doesn’t beat around the bush either. “The Court may also consider the motives of the parties and determine whether the use was in good faith or with evasive motive,” continues the memorandum.
Even if that argument fails too, an injunction shouldn’t be presumed to happen. The film companies also point to their own potential harm from the halt of the film’s distribution and ask the court to do the typical balance of hardships. The Gilliam film is said to have made $750,000 in domestic gross in its first month of release. The defendants say they expect hundreds of thousands of dollars in the next few months.
“Severing that revenue stream will prevent Defendants and other non-parties from recouping the funds they spent on the Film,” argues Voltage. “Defendants will also be in breach of contractual obligations to others, and would face millions of dollars in damages claims from third parties. Accordingly, a bond in the amount of $2,000,000 would be the minimum necessary to protect Defendants.”
The defendants are represented by Eisner Jaffe Gory as well as Vedder Price.
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