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Ninth Circuit Finds Actress’s Use of Clips From Film Constituted ‘Fair Use’
By a MetNews Staff Writer
An actress who made unauthorized use of clips from a movie in which she starred by having them inserted in an “acting reel”—intended to show off her talents to casting directors—did not constitute copyright infringement, the Ninth U.S. Circuit Court of Appeals held yesterday, declaring that the fair-use doctrine applies.
Affirmance of a summary judgment in favor of actress Jessica Cesaro, known professionally as Jessica Haid, came in a memorandum opinion signed by Circuit Judges Bridget S. Bade, Lucy H. Koh and Kenneth Kiyul Lee. Haid was sued by Robin Bain who wrote, produced, directed and appeared in a movie known as “Nowhereland,” also marketed as “Nowhereland/Girl Lost.”
Haid starred in that film, copyrighted by Bain. One of Haid’s two acting reels was about two minutes and 50 seconds and the other was approximately three minutes and 39 seconds.
One reel was on the Internet.
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ROBIN BAIN copyright owner |
JESSICA HAID actress |
Four Factors
District Court Percy Anderson of the Central District of California granted summary judgment in favor of Haid on Aug. 6, 2020. He found three factors militated in Haid’s favor and one in support of Bain’s position.
Anderson said:
“Here, Haid’s reel is transformative. Unlike the Film, which seeks to tell a story involving the sexual exploitation of women, the reel tells no story. The reel’s purpose is to provide information about Haid’s acting abilities so that casting directors may become interested in casting her in other roles. The reel changes the original work by showing mostly brief portions of selected scenes in a manner that conveys little information about the plot of the film. This factor therefore weighs strongly in Haid’s favor.”
Also weighing in her favor, he declared, was that Haid’s purpose was noncommercial in that she did not sell copies of the reel and use of the copyrighted material was scant, noting: “Even the longer version of Haid’s reel, at 3 minutes and 39 seconds, comprises less than 4% of the Film’s 95 minute length, with all but 2 of the 40 clips lasting less than 10 seconds.”
Broad Protection
One point in Bain’s favor, Anderson found, was that her film is “a work of fiction inspired by important real-life issues,” therefore entitled to “broad copyright protection.” In considering this factor, he said, courts look at the extent to which the work has been distributed, and pointed out that at the time Bain had the reels assembled, the film had only been seen at six festivals and had not been commercially released.
“Haid’s use of the Film for her reel was ‘fair,’ ” Anderson concluded.
The Ninth Circuit ruled:
“The district court properly granted summary judgment on Bain’s copyright infringement claims because Haid’s use of the film for her reel constituted fair use.”
DMCA Invoked
Bain sought to invoke the Digital Millennium Copyright Act (“DMCA”) which protects against online theft of works. Haid, who says she is technologically illiterate, had provided a copy of Bain’s movie, with a watermark, to LA Media Works (also a defendant but not a party to the appeal) which, in putting the clips on her reels, removed the watermark.
A copy of Bain’s film was on Haid’s Google drive and was publicly accessible. It showed Haid as the owner which, Haid theorized, was inserted automatically by Google.
There’s no liability under the DMCA, Anderson said, pointing to the intent requirement. He wrote:
“Bain… cannot establish that Haid either intentionally altered the copyright information or that Haid knew or had reasonable grounds to know that being listed as the ‘owner’ of the Google Drive file would induce, enable, facilitate, or conceal infringement.”
The Ninth Circuit said:
“The district court properly granted summary judgment on Bain’s DMCA claim because Bain failed to raise a triable dispute as to whether Haid possessed the necessary intent for purposes of the statute.”
The case Bain v. Film Independent, Inc., is 20-55948
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