Sorry for vanishing this week, dear readers. Between Kate Middleton locking down Prince Wills and Navy Seals taking down Osama, it’s been a nonstop news frenzy, and there’s very little we have to say about any of it — except, perhaps, to wonder what sort of legal claim the extremely unhappy-looking little girl in the bottom-left of this photomight assert, or to discuss my potential claims for intentional infliction of emotional distress based on being subjected to the rogues gallery ofRoyal Wedding hats (egad!). But now that the Duke and Duchess of Cambridge are busy living happily ever after, it’s time to look forward to the next big wedding, coming soon to a theater near you: the marriage of Bella Swan and Edward Cullen. (Big sigh from Team Jacob.)
Twilight fans are dying to witness the magical wedding of the innocent Bella to her sexy vampire boyfriend Edward (previously known as Cedric Diggory), as well as other monumental events that occur in Breaking Dawn, the final book in the Twilight Saga. (Umm, of course I wouldn’t know anything about that…it’s not like I read the entire series cover to cover. Nope, definitely not me!). The first installment, The Twilight Saga: Breaking Dawn, Part 1, is scheduled to hit theaters on November 18, and Part 2 will follow in November 2012 (way to milk the franchise, Summit Entertainment). Just as the excitement for the film is building, someone always has to go and ruin the fun.
Several weeks ago, several unauthorized screenshots from Breaking Dawn were leaked and illegally posted on Twitter by anonymous users. Needless to say, Summit Entertainment was not happy. Filmmakers issued a statement pleading with fans not to view the photos or distribute them online. Robert Pattinson even made his own Cullen-like appeal to fans, asking them to “punish” the infringers and to “police your own.” (Of course, producers have let someofficially-sanctioned scraps out for the well-behaved Twi-hards of the world.) And most producers would stop there, with only their angry-sounding statements and impassioned pleas to fans to protect themselves. But Summit, you’ll recall is the studio that sued the makers of high-profile wardrobe pieces from the Twilight movies for advertising them as high-profile wardrobe pieces from the Twilight movies. It’s the studio that came after a lonely defendant for statutory damages for copyright infringement for leaking photos from last year’sEclipse. And now, it’s the studio that has taken the uncommonly aggressive step of filing a lawsuit against ten “John Doe” defendants. What does this mean?
First, the unauthorized posting of the photos constitutes copyright infringement, plain and simple. Regular readers of our blog, of course, know that a lawyer’s favorite answer to any question is “maybe,” but even we can’t find a way to hedge on this one: no Twitter or Facebook user has the right to post images from a copyrighted work on his or her page without the authorization of the copyright owner. Many readers will wonder how the leaked photos could actually cause any damages — surely Twilight fans will go see the film multiple times and buy the DVD no matter how many photos are leaked. If anything, early leaks only serve to drive fan excitement (warning: hope you like crude humor). (Recall the discussion of the crazed teenage Justin Bieber fans — aka the Beliebers — who recorded small portions of Bieber’s film Never Say Never on their cell phones while attending the premiere, or the mom of the two-steppin’ toddler who posted a video of her tot on YouTube dancing to a Prince song.) To deter such “victimless crimes” and save copyright owners from making the often-challenging requisite showings on damages, however, the Copyright Act allows plaintiffs to simply pursue flat “statutory damages” without evidence of actual harm, which can reach up to $150,000 per infringement if the copyright owner can prove the infringer’s actions were willful.
Second, Summit’s John Doe lawsuit will allow the studio to track down the individuals responsible for leaking the Breaking Dawn images on Twitter. One would assume that the first step to filing any lawsuit would be naming a defendant, but no lawyer worth her salt would ever let herself be barred from her natural habitat (i.e., the courtroom) by something trivial like not knowing who the enemy is. Summit’s lawsuit gets its case into the legal system, which will enable it to serve subpoenas on Twitter to obtain the identities of the individuals who posted the unauthorized images. Once Summit learns the name of the infringers, it will replace the “Does” in its lawsuit with the names of each of the wrongdoers and sue them for copyright infringement. (Too bad Summit couldn’t just rely on Alice’s clairvoyance or Edward’s keen mind-reading abilities, instead of old-fashioned litigation tools like subpoenas and discovery requests.) And the fact that these soon-to-be-named defendants posted this leaked content anonymously suggest that, unlike those hapless Beliebers, they knew what they were doing was wrong — something that doesn’t bode well for their argument on “intentionality,” which may, in turn, jack up their potential exposure on statutory damages.
More importantly, Summit’s lawsuit tells us that studios may be taking strides to finally tame the cyber-tumbleweed-strewn legal Wild West of social media. Should Summit’s lawsuit result in successful prosecutions, look for such lawsuits and investigations to become more and more common. And, if such actions do not result in copyright infringement lawsuits, look for studios to take out their ire for infringers in different ways. Take, for example, the recent story of Nicole Crowther, an extra on Glee who infamously tweeted the name of the prom king and queen. Her tweet was met with a scathing response from producer Brad Falchuck: “Who are you to spoil something talented people have spent months to create? Hope you’re qualified to do something besides work in entertainment.” (Wouldn’t it have been easier to just tweet, “You’ll never work in this town again!”) Crowther’s actions have reportedly prompted Fox to consider including nondisclosure clauses in its standard SAG day player contracts, thereby giving studios an immediate contractual remedy to go after in-house copyright infringers and leakers of confidential information.
Even if people still think “the web is considered ‘public domain’” (it isn’t), Copyright Law has always given content creators like studios the right to protect their material online, discovery procedures have long given them the tools to protect those rights, and Summit is showing that the studios now have the will to put those tools to full use.
As we like to say ‘round these parts: govern yourselves accordingly.