You may or may not have heard about this little dust-up between Paramount Pictures and a Twitter user with the handle @555uhz. In a nutshell, @555uhz has been, for reasons that are unclear, tweeting still frames from the 1986 movie Top Gun. The stills are being tweeted in order of appearance, so essentially, @555uhz is tweeting the movie in its entirety, one frame at a time. Paramount Pictures, the owner of the copyright in Top Gun, tasked its lawyers at Kilpatrick Townsend & Stockton with sending a DMCA takedown notice to Twitter, asking it to remove all images of the movie.
For those who don’t know, the Digital Millennium Copyright Act (DMCA) contains specific rules about what copyright owners are supposed to do when they think someone is infringing their copyright in a digital medium. One of those rules says that the copyright owner needs to send a notice to the service hosting the allegedly infringing activity. The notice must state with particularity the right being infringed and request that the allegedly infringing activity be removed, which is why it’s known as a “takedown notice”–they want the item taken down. The person who originally posted the material has the right to respond and state their case as to why the activity is not infringing and to request that it be reposted.
The biggest problem with this system is that although the DMCA requires the copyright owner to have a good faith belief that the use is unauthorized, there is no requirement that the owner have a good faith belief that the use is infringing. Thanks to the intricacies of U.S. copyright law, there are a number of circumstances in which unauthorized use is legal, whether the copyright owner likes it or not. This is one of those cases.
To people who care about freedom of speech, Section 107 of the U.S. Copyright Act is one of the most important sections. It lays out one of the most useful, but least cut-and-dried, limitations on copyright owners’ exclusive rights: fair use. Even if a copyright owner is vehemently opposed to a particular use of their work, if the use can be characterized as a fair use, then it can continue. The copyright code specifies four factors that must be considered when analyzing fair use. (Note: although the law says that factors to be considered “shall include” the four outlined, implying that other factors not listed could also be considered, courts have consistently only used the four factors stated in the law.)
Here I will address each of the four statutory factors as it relates to @555uhz’s posting of stills from Top Gun, an analysis that Paramount and its lawyers should have done (and should be required by law to do) before sending their takedown notice. Fair use analysis is a little like a scorecard; each factor is evaluated and ends up favoring one party or the other. Whomever “wins” the most factors usually “wins” the fair use argument.
Factor 1: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
The dichotomy between “commercial” and “nonprofit educational” is somewhat false. Just because something is not necessarily educational does not make it commercial. There’s a vast gulf between those two categories, and I believe that @555uhz’s tweets fall into that gulf. Clearly, @555uhz is not making any money by tweeting Top Gun frame-by-frame. (Honestly, does anyone, anywhere make any money from tweeting anything? Does Twitter make any money?) The tweets are not being used to advertise Ray-Ban sunglasses (featured in the movie) or anything else. There’s no promotion happening, or anything else that could be characterized as commercial, and there’s no profit. So it’s a nonprofit use. Is it educational? Meh. I’m not sure anyone is learning anything from this exercise, except that there is no end to the ridiculous ends to which Twitter can be used. But just because it’s not overtly educational doesn’t make it an infringing use.
There’s another angle to the first factor that isn’t mentioned in the statute but has been fairly well ensconced into fair use jurisprudence, so I’ll mention it, and that is transformativeness. Even if the other factors weigh against a finding of fair use, if the use in question can be considered “transformative,” it will almost always be found to be fair. Transformative use involves recharacterizing a work in such a manner that it no longer serves the same purpose as the original. I think there’s a strong argument that the use of stills from Top Gun is transformative because viewing stills individually via Twitter serves a different purpose than watching the movie. The movie has flow, dialogue, music, motion, mis-en-scène (look it up). Stills from a movie have none of those things. And although @555uhz appears to be captioning his Tweets with dialogue relevant to the still, you still miss the nuance that is present when you see and hear an actor speak the words as part of his performance. So the first factor favors @555uhz.
Factor 2: The nature of the copyrighted work
Basically, this factor asks whether the work being used is a creative fictional endeavor, or one that is more factual. This factor is almost a non-factor, because in fair use cases, the work at issue is almost always one of a creative, fictional nature. That is also the case here. Top Gun is a fictional movie that Paramount funded. So the second factor favors Paramount.
Factor 3: The amount and substantiality of the portion used in relation to the copyrighted work as a whole
In this particular case, you could argue that each individual tweet uses a minuscule amount of the copyrighted work as a whole. One frame out of hundreds of thousands is extremely insubstantial. However, you could also argue that the tweets taken in conjunction with one another (if the project were allowed to continue to its end) would, in fact, constitute the entire copyrighted work. Given that both arguments are plausible, I’ll consider this factor a draw.
Factor 4: The effect of the use upon the potential market for or value of the copyright work
This is often where the meat of the fair use discussion is. After all, the entire point of copyright law is to grant a time-limited monopoly to creators so they can exploit their work and benefit economically. If a use doesn’t harm that arrangement, then the copyright owner has nothing to complain about. And that is precisely the case here. No one in their right mind would view individual frame-by-frame tweets over the course of several months as a reasonable substitute for watching the original movie. If I want to see Top Gun, I’m going to pop in the DVD and watch it. And if I don’t already own the DVD, I’m going to rent it or purchase it. What I’m not going to do is scroll through @555uhz’s Twitter account (and scroll, and scroll, and scroll) to see a frame-by-frame re-creation. NO HARM WILL COME TO PARAMOUNT’S MARKET FOR TOP GUN BECAUSE SOME JOKER DECIDED TO TWEET IT FRAME-BY-FRAME. None. Nada. Zilch. The fourth factor overwhelmingly favors @555uhz.
So, to recap. The first and fourth factors favor @555uhz, the second factor favors Paramount, and the third factor is a draw. @555uhz wins. And that, my friends, is why Paramount and its lawyers at Kilpatrick Townsend & Stockton need a refresher course in copyright law. Paramount wasted its money having its lawyers draft a takedown notice for something that, by rights, never should have been taken down. They look like dicks. But movie studios are used to looking like dicks. And Kilpatrick Townsend & Stockton look like dicks for not telling their client, “Um, you know, a cursory fair use analysis indicates that this isn’t actually infringing activity.” But hey, lawyers got to get paid, right?
The only person who comes out of this scenario not looking like a dick is @555uhz. He’s kind of insane for deciding to tweet a movie frame-by-frame, but at least he’s not a dick. (Note: I have no idea whether @555uhz is a male or a female. I kind of assume he’s male, but I’m using “he” generically here.)
According to Torrent Freak, where I first read about this, Twitter deactivated @555uhz’s account in response to the takedown notice. It’s unfortunate when jerks with deep pockets and/or law degrees misuse the law to achieve their ends. If @555uhz happens to see this, maybe he can write to Twitter to get his account reinstated.
Please note, although I am a licensed attorney, I’m not @555uhz’s attorney, and this blog post doesn’t qualify as legal advice.