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Copyright Lawyer Calls Aretha Franklin Injunction ‘Outrageous’

Expert says Telluride should appeal ”improper“ injunction that blocked the screening of ”Amazing Grace,“ a documentary about Franklin’s 1972 concert

An expert in intellectual property called the emergency injunction blocking the Aretha Franklin documentary “Amazing Grace” at Telluride Film Festival “outrageous” and “unjustified by any measure of the law.”

In an interview with TheWrap, Lincoln Bandlow, a partner at Fox Rothschild and an expert in copyright and First Amendment law, said the ruling represented a rare example of prior restraint on free speech.

On Friday, U.S. District Judge John L. Kane ruled in favor of an emergency injunction filed by the singer, blocking the Telluride Film Festival screening of the documentary. The film produced by Alan Elliot consists largely of footage from the singer’s 1972 concert performance at the New Missionary Baptist Church in Los Angeles, California, shot by director Sydney Pollack. Franklin claimed she never granted permission to use the footage in “any commercial context, and has not authorized the public release of the footage.”

The injunction lasts for for 14 days, leaving the film in limbo ahead of its scheduled screening at the Toronto film festival.

TheWrap: You’ve been following the case. How do you feel about it?
Bandlow: It’s a pretty outrageous prior restraint on speech that I think is unjustified by any measure of the law.
These emergency injunctions are pretty rare, correct? Why is that the case?
When it comes to stopping speech, yes. It’s a prior restraint on speech. It’s extremely rare and should not have happened in these circumstances at all.

In the filing, it clearly said that Alan Elliott, the producer of the film, needed to ask for Franklin’s permission to use the footage. 
There’s nothing unusual here at all where someone says “Look, I am giving you the content of a copyrighted work, and that work has people in it, and to the extent you would need to get permission from a person, that’s your problem.” That’s all it’s really saying. For example, If I am a photographer and I license a photo of a guy walking down the street, I would say, “I am giving you a photograph. To the extent that you need any permission from anybody in the photograph… that’s your problem.” It’s to the extent that you need it. If you don’t need it, you don’t need it. Particularly if you’re going to use footage in a documentary about a person, you don’t need their permission because the First Amendment says so. It would be like if Madonna ran someone over with a car, and you decide to write a story with the picture of her, she couldn’t say, “Hey, you can’t use that picture!” She couldn’t sue. That’s not how it works.

According to the filing, Franklin gave Sydney Pollack permission to film the concert with the understanding that he cannot publicly release the footage. Moreover, Franklin sued Elliott in 2011.
That doesn’t bind some third party to that contract — that would only limit that particular party. If I take a picture and I promise you I won’t let it be used for any purpose, but some other person gets a hold of it and uses it, you can’t sue the second person for breach of contract. It’s a wholly irrelevant fact that there was another settlement prior to this lawsuit.

So is Telluride to blame for the unauthorized screening of the film? 
I don’t know how binding Elliott’s agreement is on the film festival itself. Typically, the remedy for a breach of contract or any other such claim is money damages, it’s not an injunction. So even if you could think of a potential claim, it’s not enough for an injunction against speech. Barring very extraordinary circumstances, to enjoin speech like this is absolutely improper.

Telluride isn’t screening the film anymore.
Well, the festival is going to comply with the court order but I hope they are going to seek an emergency appeal. I would hope a Court of Appeal would say this is totally unconstitutional.
In terms of it screening at Toronto Film Festival in the next coming weeks, Canada has a completely different law — they don’t have equal speech protection.

Do you think this ruling is going to affect Toronto’s screenings? 
There may be less protection for free speech in Canada. I think film festivals are always trying to make themselves aware of potential litigation over a film. Whenever there is potential litigation, it does go into their decision-making process of whether to screen things.

Eighty percent of the film is footage that Franklin never authorized for public release and he is using her likeness — how does that affect the ruling?
Again, if you want to do a story about Madonna tomorrow and use a picture of her, should she be able to stop you? That’s what you’re saying.

You can contractually agree to waive your free speech rights. So let’s say I take a picture of you and agree never to show it to anyone.  If I let you know how I am about to show it to the world, there is no First Amendment issue if I’m stopped from doing that, because I contractually agreed to waive my First Amendment rights. But if some third party got ahold of the picture and was going to show it, that third party has not contractually waived any rights and you are left with First Amendment law which says prior restraints should not be allowed unless there are life or death consequences. Here, there are no such consequences.  If she has a valid claim, money damages will suffice. So no injunction on speech is warranted.

Should the news be able to show the footage? Someone is going to do a story about the ruling — are they going to show the footage to illustrate the story? You are saying that they can’t do that.

This is an injunction against speech. The law is clear you need some extraordinary life endangering circumstances under Near vs. Minnesota — you don’t just get an injunction against speech because it’s going to cause some damage. This is extraordinary. This is really really highly inappropriate, and I’m hoping it will quickly be reversed otherwise it sets a terrible precedent.

What about the fact that it is a temporary restraining order? It’s only 14 days, so how will that affect the other festivals?
There is still a case law… it’s really extraordinary. There are some cases where you get through an entire trial and then you maybe look at if an injunction is warranted, but this early on should never be the case.

The concert was made into a CD and she was performing in a public place.
She didn’t actually record the footage for her CD at the concert, that’s the issue. She can’t own the copyright of the actual footage. There may be some material that itself is copyrighted. For example, if the footage is of her singing her own copyrighted song, then Elliott or Pollack has that issue of making a copy of her song with their footage, which is some copyright issue right there.
However, in my understanding, there is no copyright issue in this case and no intellectual property issues in this claim.

What about the bootlegging statute?
The statute only relates to the capturing, it doesn’t relate to the distribution.

Everyone that goes to a concert and records someone singing a song, that’s considered bootlegging?
There is some special statute that Congress passed because technically, the person that captures that footage owns that copyright. Congress wanted to stop that so they passed a special law against it.

Look, Franklin sued for the right of publicity, she didn’t sue on a copyright claim. Right of publicity is the other thing that’s interesting about this case. Right of publicity started as a personal privacy right and it’s getting morphed into a copyright-esque property right. At the end of the day, it’s a privacy right and you get monetary compensation, you don’t get an injunction. And I don’t think there is any viability to her privacy claim. This is a documentary about her, and it’s transformative and it’s protected under the First Amendment.