[KineJapan] Copyright-free images

Sat Sep 20 22:36:47 EDT 2014

To resume this thread: while NHK may be taking the position that DVD stills are quotations, a number of other organisations in Japan do not agree.

For example, I have been trying to publish several essays with DVD stills through the University of Tokyo. It's a small-format academic booklet, primarily for research libraries. The images are monochrome. The booklet will not be sold for money. 

Todai's position is that not only must we contact all the rights holders to seek permission, but we must also ID all of the actors/actresses appearing in the DVD stills and absolutely check on “portrait rights” as well. There are over thirty images total, from eight different production companies, some international, and some of which have been defunct for over fifty years. In the case of the defunct companies, Todai’s position is that we must track down the current rights holders and seek permission from them.

I have been through this before, and with the generous help of members of KineJapan, managed to sort it out. From that, I thought Todai had agreed that DVD images may be treated like quotations. However, they changed their position ex post facto, after all the editorial work was done. 

Although I explained that there is consensus in our field on fair use of DVD images, that section 32 of the Japanese copyright law allows quotations, that the case of Uesugi Satoshi vs. Kobayashi Yoshinori sets a precedent for academic use of images in critical analysis, that NHK supports this policy, and that North American publishers do not require permissions — in spite of all that, Todai phoned Shochiku to “check” on the law (even though we are not using images from any Shochiku films), and then contacted CRIC and JCOPY. Their position is that we really do need these permissions and portrait rights.

I don’t know how long it will take to track down all of these rights, and I can’t really imagine pestering the families or heirs of directors/talent for such a low-level request. I feel bad that my colleagues are even spending time on this, though it seems to be their conviction that we must. I could understand the rationale for contacting production companies that still exist, but the claim that we need portrait rights as well seems rather excessive. After all, these are images of actors working for production companies, playing fictional characters in narrative films — not paparazzi photos. 

It is not clear to me that Todai completely understands they are taking the position that we need permission each time we quote a primary source. Needless to say, in other fields of the humanities, such a stance would likely do immense harm to research. I have tried to explain that imposing such strict requirements on locating permissions could have a glaciating effect on future collaboration with Japanese institutions, but this concern has also been dismissed. 

Interestingly, Todai says that section 32 of the copyright law may be “too old”, but no other ‘newer’ laws are being cited. It’s all about what these other organisations say, starting with Shochiku. At this point, I can’t tell if we’re even operating in the realm of law, or it’s more the say-so of the copyright lobby mixed with institutional paranoia.

If anybody has any suggestions about a line of argument against this position, I would be very curious to hear it. I am concerned this could delay publication for months or require that we ask the contributors to rewrite their articles and drop images for which we cannot secure permission.

M. Roberts
Research Fellow, University of Tokyo Center for Philosophy
http://utcp.c.u-tokyo.ac.jp/blog/mark_roberts/index_en.php

On Sep 11, 2014, at 11:11 PM, Maria Roberta Novielli <novielli at unive.it> wrote:

> Thank you, Markus. However, in Italy we have very strict rules on the matter, since we have to demonstrate that we actually got the permission to publish a still. 
> 
> Best,
> 
> Roberta
> 
> 2014-09-11 2:16 GMT+02:00 Markus Nornes <amnornes at umich.edu>:
> From the POV of North American publishing, the question of frame grabs (from video or film) appears settled. There are good posts on the background for this on the SCMS website and Bordwell's blog. They consider it the equivalent of a quote, so no need to contact rights holders. Obviously, NHK is taking this position. Good for them!
> 
> (This has, by the way transformed book design. Now many publishers use page layouts that accommodate small images, since DVD grabs pixel out when blown up.)
> 
> So I would assert fair use and let the publisher lead the way. If they balk, you could try showing them the websites above, although they are aimed primarily at American publishers. 
> 
> I once worked with a press that was sitting on the fence. I pointed out that if anyone is going to get sued over this, it'd be Thompson and Bordwell. Their textbooks make a lot of money and they've never paid for frame blow ups. 
> 
> As for the photo from the children's book, you couldn't claim fair use unless the book itself was the object of analysis. 
> 
> Markus
> 
> PS: Covers are another matter. As PR instruments, they are not covered by fair use principles. 
> 
> 
> 
> 
> On Thursday, September 11, 2014, Mark Roberts <mroberts37 at mail-central.com> wrote:
> Dear Roberta,
> 
> On Sep 10, 2014, at 10:01 PM, Maria Roberta Novielli wrote:
> 
>> I would use some stills taken from DVDs, but I wonder if the rights belong to the producers of the DVDs or to the original production companies, if still existing. 
> 
> My understanding has been that the production company is the rights holder, not the distributor. There is, as you note, a question in the case of production companies that no longer exist. I gather that the rights often go to the director or his/her family, but I am not sure about the law on this. For example, the ATG films are not old enough to be public domain, but the production company is defunct. What is their status?
> 
> There is thus a lingering question in my mind about whether it is really necessary to go through the formality of contacting the rights holder. I have heard via the Copyright Research and Information Center of Japan (http://www.cric.or.jp/), that this is "recommended", even if it merely to inform them that you intend to use DVD stills in a publication. Of course, if the production company no longer exists, it may not be so simple to do this.
> 
> It would be helpful to know how to handle this situation, and especially what to tell a publisher. 
> 
> I hope somebody on KineJapan more knowledgable than I can weigh in on this.
> 
> Mark
> 
> 
> -- 
> Markus Nornes
> Chair, Department of Screen Arts and Cultures
> Professor of Asian Cinema, Department of Asian Languages and Cultures
> Professor, School of Art & Design
> 
> Department of Screen Arts and Cultures
> 6348 North Quad
> 105 S. State Street
> Ann Arbor, MI 48109-1285
> 
> 
> 
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> 
> 
> -- 
> Maria Roberta Novielli
> Professore Associato 
> Università Ca' Foscari Venezia
> Dipartimento di Filosofia e Beni Culturali
> Malcanton Marcorà, Dorsoduro 3484/D - 30123 Venezia
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