Haven’t I Seen That Before: Copyright Infringement in

Foreign FilmsSometimes Truth is Stranger

Than Fiction

Cuneyt Arkin is Rocky…or not• The music you hear in the background has NOT been added; this is how it

originally appeared. This is “Eye of the Tiger” from the Rocky IV Soundtrack.

I always thought John Williams should score a Ninja film!

• This clip of Challenge of the Lady Ninja is also how it originally was shown, with no editing. The music you hear is Imperial March by John Williams from The Empire Strikes Back.

What is this?

• To quote Barry Burton and Jill Valentine from the first Resident Evil

Robocop meets The Terminator

Original Theatrical Trailer for RobocopMusic used in background: Brad Fiedel’s score to The TerminatorBoth movies are owned by MGM (via Orion Films)

Why did foreign movies borrow music from other films?

• Pete Tombs, Owner of DVD label Mondo Macabro, suggests the following reasons:– It was cheap and easy to do.– The music often served as a badge of authority

and ironically enough quality for members of the audience.

– The filmmakers often greatly enjoyed the source material and wanted to honor it by including it in their own works.

Common Misconceptions about the Practice

• The songs used are often not the full songs, or even the most recognized part of the track, that will be used.

• The tracks used are not always common tracks, it is just the common tracks that stick out to us, such as Ghostbusters and Rambo rather than music taken from The Big Gundown.

What are the potential legal issues for a distributor?

• The first is that most of these songs are unlicensed and thus a violation of the Copyright Act.

• Each act of distribution is a separate act of infringement, thus there can never be a run on the statute of limitations.

• Even if a potential licensee wants to clear the rights, certain rights’ holders may refuse to grant clearance or charge an exorbitant price.

• A distributor will often have to pass on a title or edit out the music (a process which is expensive and counterproductive as fans will often go through bootleg services to get an uncut copy). This problem is one that also affects American productions (i.e. The Fugitive TV show, WKRP in Cincinnati, The Thing’s original VHS release, etc).

What are some solutions to the issues raised by stolen music?

• Lawsuits by rights’ holders– Inefficient and often ineffective

• Removing the offending music– Expensive and often will hinder sales

• Simply release the movies and hope no one else will notice– Deprives artist of economic benefit and exposes

the distributor

What are the various legal and economic views of the issue?

• U.S. View of Copyright (Economic Rights)– Let’s Get Paid

• French View (Moral Rights)– Let’s Create Delays

• Berne Convention• TRIPS Agreement

What is a realistic solution to the problem?

• General Amnesty For Foreign Infringement before 1989

• Provide protection From lawsuits for distributors

• Set up a mechanical royalty system to allow for payment to rights’ holders based on future use on units sold

• Create Administrative Board to oversee applications for payment

What about Turkish Star Wars?

• Turkish Star Wars highlights one of the most well known examples of stolen footage being recycled into another movie

How do we address this issue?

• The issue is actually one extremely similar to the idea of stolen soundtrack music. In this case, it is just the unlicensed use of footage.

• Therefore, several of the same solutions and issues raised by stolen music apply to stolen footage.

Problem Solved? Not Quite

• Sometimes the theft isn’t just sonic—it’s also the story and film! Take Nigerian Titanic for example.

Point of Reference: Commando

Commando vs. D-Day: A Case Study

What can legally happen to an infringing work?

• Eventually, the film can have an injunction placed against it and, as part of a final judgment, all copies can be ordered destroyed.

• This was what happened to F.W. Maranu’s Nosferatu.

• The Last Shark still to this day has a permanent injunction against it ever being shown in the United States.

Turkey and India: A tale of two film industries

• Turkey and India represent two countries heavily exposed to Western cinema and culture by virtue of location and history.

• They both have been key areas of globalization and thus have produced movies that reflect Western Culture in their own unique way.

When is a rip-off copyright infringement?

• American Case Law on this issue dates back to Nichols vs. Universal.

• The modern standard for infringement is often referred to as the Extrinsic/Intrinsic Test.

The Modern Standard

• The Extrinsic/Intrinsic Test–Often called the Kroft Test–Contains a two part analysis

• Extrinsic is an objective analysis to determine what is protected.

• Intrinsic is a subjective analysis to see if infringement has occurred.

• A finding of striking similarity may allow for access to be inferred.

But what about Lady Terminator and Rambu?

• This clip comparison from Lady Terminator and Terminator may at first blush scream of Copyright Infringement, but that is not the reality of the case.

Battle of the Terminators

Rambu is not really Rambo

Conclusions

• The current lack of legal finality regarding copyright issues over un-cleared sounds and images in foreign films is an issue that can no longer be ignored.

• The problem can be solved in a way that promotes the best interests of the rights’ holders, distributors, and fans.

• What may be a rip-off to one is not copyright infringement under the law.