Naturally, I’m still thinking about copyright law in the context of the Twilight franchise – what else would I be doing on a Tuesday morning? I was looking again at some of the press coverage surrounding the young woman who was detained in custody for several days for making a three minute video-recording in an Illinois movie theater that contained footage from Twilight: New Moon. I posted previously about this here and here. Apparently, she was initially charged with (or at least detained for) criminal copyright infringement.
The woman who had made the recording had said that she had no intention to distribute the recording or to make any commercial profit from it – it was a purely personal record of her sister’s birthday party that included an outing to the theater to see the movie. I was recently looking at the Nimmer copyright treatise re criminal copyright infringement and noticed a few things I hadn’t picked up on previously, not being an expert in criminal aspects of copyright. Nimmer notes that there is some debate about whether intent (or “willful conduct”) on the part of the defendant is a requisite aspect of the criminal action and, if so, whether this refers to intent to copy or intent to infringe. Additionally, Nimmer doesn’t seem to say anything about whether fair use would be a defense to a criminal copyright proceeding. I’m interested in people’s views on intent and on the potential application of fair use in the criminal copyright context, particularly when considered outside the scope of large scale digital piracy, and within the context of using personal recording devices (eg cellphone cameras) for private purposes.
Nimmer does note that usually an intent to make a commercial profit is required as part of the criminal action, which makes me wonder on what basis the woman in Illinois could really have been subject to criminal liability – and of course she was released from jail after having been detained for two days. But I don’t know that much about criminal copyright liability and am interested in any light others can shed on the application of the legal principles relating to criminal copyright law to personal video-taping in movie theaters.
Isn’t fair use grounded in the First Amendment, and wouldn’t one therefore be able to argue that there’s a constitutional right that would be infringed if one were prosecuted for actions that constitute fair use? See, e.g., SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001)(holding that “The Wind Done Gone’s” use of the the plot and characters of “Gone with the Wind” was a non-infringing fair use of GWTW because it was a critique of GWTW’s depiction of slavery and the Civil-War era American South and stating that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize — over 200 years — of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”
While there is a federal criminal copyright statute, this (and all the other) awkward brief movie taping/overbearing theater owner arrests that make splashes in the papers are under state criminal law. Many of these laws are of recent 9or recently expanded) vintage, and their elements are wholly distinct from copyright. So Roger Ebert himself taking a theater camshot for the online version of his column (or alternately for some non-profit devoid of any commercial interest) would spend time in the clink or walk based on the state statute’s elements, independent of fair use and other federal law.