Michael Moore out of context?

[MobBoss]

More than you and your military legal career, since you come on these boards and make arguments all the time backed with no facts, and full of logical fallacies, which you would have learned about had you attended any kind of law school.

So instead of expounding upon your legal expertise, which I suspect is nil, you choose to attack me instead. Sorry, but its not me saying factually that this case is baseless, it is you. So by all means, illuminate us on your legal back ground concerning such cases and tell us why you think it is baseless and please cite some case law to support your allegation.

Allthough the entire theme of the movie was anti-Bush, it would be ridiculous to charge the pictures of the flag draped coffins, or the WTC being attacked were off limits, because people who died inthe incidents were pro-Bush.

And I am sure NBC has the paperwork he signed saying it was the property of NBC.

I guess we shall see in the lawsuit. There is certainly nothing to indicate otherwise in the newstory that this is the case.

Knowing the photography industry pretty well through proxy, I know, ownership is not the subject, but the photographer's.... unless the subject had their likeness copyrighted... and I am sure this vet didn't. The law is very clear in this.

I disagree. I think the whole issue is going to come down to whether the soldiers image and interview can be considered as part of the public domain. Thats Michael Moore's only hope actually, as it is almost certain that Moore never received permission from the soldier to use his image in a for-profit movie.

 

[Neomega]

I think the whole issue is going to come down to whether the soldiers image and interview can be considered as part of the public domain. Thats Michael Moore's only hope actually, as it is almost certain that Moore never received permission from the soldier to use his image in a for-profit movie.

And this is based upon what legal expertise you have?

 

[MobBoss]

And this is based upon what legal expertise you have?

Heh, I notice you wont answer my question.

However, this is based solely upon my own opinion, which I give freely in the true spirit of the OT forums.

And I didnt even personally attack you. How cool is that?

 

[A'AbarachAmadan]

I hope the Soldier wins, though I think the amount is excessive. I remember that scene in the movie and Mr. Moore clearly implied the Soldier was against the war and he was not being taken care of by the gov't. Both of which are false. Don't know how the law will work out, but I think intent is important. When Jay Leno takes something out of context for comedy it is one thing; when someone creates a 'documentary' it is entirely different.

 

[Neomega]

And this is based upon what legal expertise you have?

this is based solely upon my own opinion, which I give freely in the true spirit of the OT forums.

 

[MobBoss]

this is based solely upon my own opinion, which I give freely in the true spirit of the OT forums.

ROFL. Well, in that case, at least now we can assign a value to X. X being your opinion.

But good for you, its certainly good to have an opinion. I hear everyone has one.

 

[Neomega]

I have to admit, I would be in a rage if I was used in a pro-Iraq war movie... so the man's anger is justifiable, I just don't think he has a case.

Michael Moore never has been known to show much class. It's that beer gut chubby stubble faced persona he has to uphold.

If for some reason this lawsuit does go through, however, teh whole legal world will be turned upside down, and people will be suing everything that has a slight delineation on their opinions. This is a first amendment issue, and since it is, this case is going to go nowhere, because the law is already clearly stated.

If, however, NBC does not have rights to the footage, which is possible, then perhaps they actually have a case, but even then, if the soldier agreed to speak with NBC on camera, then he was putting his trust in someone perhaps he should not have.

 

[Neomega]

But good for you, its certainly good to have an opinion. I hear everyone has one.

Yes, and I hear you can even post them on message boards.

And I hear you can post them without having to have documentation of your expertise in fields.

 

[Atropos]

ROFL. Well, in that case, at least now we can assign a value to X. X being your opinion.

But good for you, its certainly good to have an opinion. I hear everyone has one.

I read a bit about this a few years ago, a propos of the famous court case between Bismarck's family and someone who had photographed the dead Bismarck and wanted to sell the image to the newspapers. As I understand it, the relevant precedent in the US comes from the 1902 ruling Robertson vs. The Rochester Folding Box Co. Rochester Folding Box made cereal cartons with the picture of a girl on the cover. The girls' parents sued to prevent the company from using the image and won.

This case is open and shut in favour of the soldier. All of the relevant boxes are there.

Has the material been disseminated? Check
Can the person be identified from the material? Check
Was the material used for commercial gain? Check

See here.

 

[MobBoss]

I read a bit about this a few years ago, a propos of the famous court case between Bismarck's family and someone who had photographed the dead Bismarck and wanted to sell the image to the newspapers. As I understand it, the relevant precedent in the US comes from the 1902 ruling Robertson vs. The Rochester Folding Box Co. Rochester Folding Box made cereal cartons with the picture of a girl on the cover. The girls' parents sued to prevent the company from using the image and won.

This case is open and shut in favour of the soldier. All of the relevant boxes are there.

Has the material been disseminated? Check
Can the person be identified from the material? Check
Was the material used for commercial gain? Check

See here.

Very nice.

 

[Neomega]

from linked site:

Non-Celebrites
The New York Court of Appeals ruled in 1982, in Arrington v New York Times, that unauthorised publication of photograph of a non-celebrity did not violate privacy or publicity rights, commenting that publication is the price every person must be prepared to pay for a society in which information and opinion flow freely.





It is very arguable if this soldier was even near a celebrity at the time the footage was taken.

 

[Mr. Do]

And if that doesn't apply, then it's all going to boil down between whether or not he did give consent to NBC then, isn't it?

 

[Atropos]

from linked site:

Non-Celebrites
The New York Court of Appeals ruled in 1982, in Arrington v New York Times, that unauthorised publication of photograph of a non-celebrity did not violate privacy or publicity rights, commenting that publication is the price every person must be prepared to pay for a society in which information and opinion flow freely.





It is very arguable if this soldier was even near a celebrity at the time the footage was taken.

Pesina v. Midway Manufacturing Company, 1996. Pesina brought an action against a video game manufacturer challenging use of his image on the home version of Mortal Kombat and Mortal Kombat II (he had been hired to model for characters of the arcade version). Midway 's motion for summary judgment was granted and the court held that the alleged use of martial artist's name, likeness, or persona did not violate his right of publicity because there was no evidence that prior to his association with the game, his name, likeness or persona had commercial value. Also, there was no evidence that his likeness was recognizable by the games' users.

I gather that the soldier was recognisable (highly so given his lack of arms!) and was indeed singled out for an interview. In contrast, Clarence Arrington was simply photographed in the street as an example of "the black middle class."

 

[FriendlyFire]

Very nice.

Very nice indeed.
Dose this person deserve hes story told, the record corrected and compensation. Sure epsecially as he give up two limbs in Iraq.

But this amputee got me thinking about MaxClerland the Vietnam triiple amuptee who was compared with OsamaBinladen in attack adds by the republicans. Or even the swift boat veterans for truth?
Actually this might have good postive implications as well as negatives. Iam happy to see how this plays out

 

[Neomega]

I gather that the soldier was recognisable (highly so given his lack of arms!) and was indeed singled out for an interview. In contrast, Clarence Arrington was simply photographed in the street as an example of "the black middle class."

I had a feeling this argument would come up.

Of course, it is not valid, if you studied the Iraq war, and recent wars in general, you would find there are 10's of thousands of amputees. Being a war amputee does not grant you celebrity status.

 

[Atropos]

I had a feeling this argument would come up.

Of course, it is not valid, if you studied the Iraq war, and recent wars in general, you would find there are 10's of thousands of amputees. Being a war amputee does not grant you celebrity status.

That wasn't my argument. I am saying that, because it was an interview, he was individually recognisable in a way that Arrington was not.

 

[Neomega]

That wasn't my argument. I am saying that, because it was an interview, he was individually recognisable in a way that Arrington was not.

Everybody is recognizable... I am sure he has a nose and liver as well, it's still irrelevant.. the question is was he a celebrity, and the answer is clearly no.

 

[Atropos]

Everybody is recognizable... I am sure he has a nose and liver as well, it's still irrelevant.. the question is was he a celebrity, and the answer is clearly no.

Uh, no. The point about celebrities is that they have

additional

rights regarding commercialisation which were not explicitly covered in the Rochester case. The rest of us still have protection under the right to privacy. See here.
Note the penultimate paragraph:

DAMAGES
In cases involving private figures, absent malice or similar
bad motivation, damages have been nominal in the reported cases.
A recent Alabama case found no economic loss to individuals who
had no unique quality or value that would result in commercial
value to the defendant simply by use of their photos, they were
seated and unidentified. The court didn't address the
plaintiffs' possible objection to being associated with a
particular activity, perhaps because they were in fact associated
with it. The claim was addressed as a kind of unjust
enrichment. In another case, damages to a three-year-old who
was pictured in an ad were set at $100--the same as the on-going
modeling fee, since the child enjoyed no special reputation and
suffered no particular mental distress.
Looking at damages and ignoring the toll taken by the
litigation process, one concludes that if a name or likeness is
to be appropriated, it is preferable for it to be that of someone
who doesn't make a living from that name or likeness.

Note that the fact that the

identification

of the persons in question is crucial.