Barry_Green
Moderator
Didn't want to name names, but I was told that argument specifically by one of the casinos we were attempting to get permission to shoot in...
Shooting in Disney without permission: Legal?
- Thread starter Gillvane
- Start date
David W. Richardson
Chapelgrove Films
Just teasin' ya, Barry. 
I know what injuncitive relief is. The "injunctive relief" for tresspass generally is stopping you from entering the land again because there are no real money damages. For example I walk across your lawn without permission. If I damaged your grass, you can certainly sue me to pay for it. But what if I didn't damage any grass? There are no damages. So I just tresspass again because it doesn't cost me anything. However you can get injunctive relief and the court will put me in jail to keep me from trespassing even though there's no money damages.
How do you apply that to video footage? Do you know of such a case where someone was stopped from distributing video footage based on "trespass"?
That's all true, but it would mean that "fair use" had not been determined by a court of law. In other words, we don't know if it was fair use or not. The statement was "Disney shut down fair use..." as if it was definitely fair use and Disney still shut them down. It cannot be determined definitively if it was fair use or not if it wasn't adjudicated. Maybe it was fair use, maybe it was not. It's incorrect to state that it was definitely "fair use" but Disney shut them down anyway. That's my point.
A Casino is a public place. Anyone over 18 can walk right in the door. There is no reasonable expectation of privacy in a public place. You would lose a lawsuit if you sued a Casino because they didn't protect your privacy.
http://definitions.uslegal.com/p/public-place/
Disney has no obligation to protect the "privacy" of their customers in the park. The park is a "public place". The kind of privacy you are talking about, not being seen cheating on your wife, well what if you're in teh background of one of these family vacation videos? There are millions of them on youtube. Would Disney ban all photographs in the magic kingdom to make sure you don't get caught cheating on your wife? No. There is no privacy issue. The Casino has a right as a business to tell you not to take photos or leave. Is there any duty to protect the "privacy" of their guests when they aren't in their own rooms or a restroom? No.
I don't specifically know of a case, because I've never researched it, but being the only remedy which would be adequate for that particular thing, a court sitting in equity could so enjoin. There are no tangible monetary damages which could be awarded, but there is irreparable damage, because they used their entry to the property to do things which weren't permitted (well, if they did; as I said, not enough detail is available) which interferes with Disney's enjoyment of its own property. Add to that the encouragement of repeated trespasses -- not by the same people, but by others -- if there is no remedy granted (and it certainly would encourage all kinds of filmmakers to copycat), and these are all things which courts have granted injunctive relief for, tailored to the specific circumstances of the trespass. In this case, the equitable solution would be to make it as though the tortfeasors obeyed the rules, and that means making it as though they never made the film.
Perhaps enjoining the specific distribution of the film may not be the actual remedy, but you'd have to come up with a different remedy adequate to right the trespass. Suggestions?
Barry_Green
Moderator
And seeing as it's private property, they can escort anyone they want right out the door too.
Ah, but here you're confusing "the law" with "what people do." I'm saying that if you tried to get permission to shoot there, they would deny it. Doesn't matter if it's "the law" or not, they would want to do what they could, to protect the privacy of their clients. In other words, they're darn well not going to go approving something that will definitely violate their clients' expectations.
No "legal" obligation, no -- but if they make it an unwelcoming place to be, then people will quit going, so they most definitely have an economic incentive.
You're talking about what someone CAN do. I'm talking about what they WILL do. Ain't the same thing.
Of course not. But we were talking about commercial usage of private property, not vacation videos. Could and should Disney be aware of some rogue filmmaker trying to steal footage on their property, and should they become aware of it, could and should they act to stop it? Of course they should. Just as a casino would. Whether they have a "legal obligation" or not, it's just reasonable to expect that the corporation wouldn't allow their clients to be taken advantage of. If they honestly didn't know, then they didn't know -- but if they knew and didn't act, then -- legal or not, they'd be idiots.
Maybe, but I don't think you get there unless you first prove a violation of intellectual property rights:
http://trespass.uslegal.com/remedies/
I think the easier case is to just go after the film maker for IP infringement. Disney has a strong argument this is not fair use if they wanted to make it. The film maker has already made his film so the danger of repeated trespass is not there for injunctive relief, and I don't really see teh "breach of peace". I see your argument about stopping "copy cats" but I don't think a Judge would buy it.
If it was "fair use" then there was no "irreparable damage". You don't have a right to stop someone from fair use of your IP no matter how much you don't like it.
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David W. Richardson
Chapelgrove Films
But again, 'fair use' is a defense offered in court after you have been sued and spent a large chunk of money on your defense. Then the burden is on you to prove your fair use argument. I don't know about you, but I couldn't afford to defend that kind of lawsuit. So it wouldn't be worth it to me to take the risk. Besides which, not respecting the rights of others is just unprofessional.
It doesn't have a thing to do with intellectual property rights. The irreparable damage is using Disney's property -- not the IP, but the physical property -- against the wishes of Disney.
"Irreparable damage" is a term of art. It's not literal unrepairable damage. It means an intangible offense which can't be quantified, so reparations -- monetary damages or the fixing or return of physical property -- cannot be awarded, thus it is "irreparable."
Look, I hate to get all credential-y here, but I passed the bar 15 years ago -- I'm not making this stuff up.
groveChuck
U-matic Member
What happens in Vegas gets posted on DVXuser? :happy:
This isn't some Mickey Mouse operation here...
I passed the bar about 10 years ago. I get what you're saying. But I think there's no claim of "irreparable damage" if it was fair use. What is this guy doing that any other tourist is not doing? Tourists shoot video in the park. This guy is shooting video in the park. The property is not being "damaged" irreparably or otherwise simply because Disney is unhappy after the fact.
So the claim is, yes he's shooting video like any other tourist in the park BUT it's irreparable damage because he USED the video in a different way, to make a movie. What's the "damage"? If this was "fair use" there is no claim of damage. Damage cannot be just, I"m unhappy about it.
Generally in trespass irreparable damage means you drove a bulldozer on my land and knocked down an oak tree. Sure, you could plant another tree, but it won't be like that oak tree. You can't truly fix it so you have to pay me money.
I don't think that's the same as you took photos of my oak tree and I don't like that so I'm irreparably damaged. UNLESS, there was an IP violation which would be real damage.
If you have case law that says otherwise obviously you're right. At this point I don't think a judge would buy your argument of irreparable damage. I think irreparable damage has to be something other than I'm upset about it. Otherwise every trespass would cause irreparable damage. Every trespass is an "intangible offense", but every trespass does not cause irreparable damage.
Anyway, it's all moot if Disney decides for whatever reason not to pursue it. They have the best lawyers around so I'm sure they are making an informed decision.
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I think it's less black and white. Part of the idea of fair use is to allow free speech, like satire. Many companies, people, brands, would stifle all speech about them that they didn't control if they could. They would use trespass laws, copyright laws, anything at their disposal to keep you from making a statement about them they didn't control.
If that's the case, and you really do have something to say that you think is important, then it's not really about respect anymore. It's really is an issue of free speech.
If it's something like, I really want to make my zombie movie and your warehouse would be a cool location so even if you don't give me permission I'll just trespass and shoot there anyways, then yes. I agree completely. That's a lack of respect and you shouldn't do it.
For me it's important what you are trying to do by shooting in Disney. Do you have a statement to make about Disney, even if that's contrary to what Disney wants people to think about their park? Or did you just want an expensive set you couldn't afford? I haven't seen the movie so I don't know which one this is, but for me it does make a difference.
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jamedia.uk
Well-known member
This is a well known fallacy... Most "public places" like shops, churches, malls, stadiums, theme parks, museums, clubs (night, sports, or whatever) etc who generally let the public in are not in fact public spaces (your local laws may differ) but PRIVATE spaces you are permitted to enter under certain conditions. Often written in *VERY* small print on the back of the ticket which is your contract for admission. For non ticketed places it gets blury and local laws apply as to the situation. However there are often rules for entry that you are deemed to accept by entering. Sometimes a sign is required and sometimes not. Otherwise some one could walk into your yard and film though the windows. Or for that matter walk into your house (assuming the door is open) and start filming.
Incidentally a lot of Public Parks are owned by the town or city and have rules. There are a lot of "public" places that have rules.
You are mixing a federal statutory cause of action (copyright) with a state common law cause of action (tort). They have nothing to do with each other. And a copyright violation is not "irreparable."
He's making a movie. The tourists are shooting video for personal use.
No. The irreparable damage is violating Disney's enjoyment of its own property by doing things it doesn't want you to do while you're there. That, in itself, is damage enough for a cause of action.
I already said. And to say they were shooting video like any other tourist is just not true -- you should know that. They knew exactly what they were doing -- they didn't just decide to edit the footage into a movie later.
Under trespass to land, yes, it can be, especially if the tortfeasor knew they were violating your rules.
And courts have found that simply being on the property doing things that the owner doesn't want you to do, even if there's no physical damage, is irreparable damage.
It's not that you're "upset" about it. It's because your enjoyment of your own property is violated. Yes, there is caselaw to this effect.
Of course it's moot. This was never anything but an exploration of theory.
You make a very good argument. I agree that Disney has a cause of action. I do not know if they would prevail and get a judge to stop distribution of the movie based on trespass.
For an injunction you need more than mere trespass. You need a breach of the peace. Is taking video for a movie a "breach of the peace"? I don't know.
No case on point comes to mind about an injunction for trespass that stops distribution of film footage, but maybe there is one.
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You are confusing "public PLACE" with "public SPACE". your yard is not a "public PLACE". The general public is not invited into your yard.
Public "place":
http://definitions.uslegal.com/p/public-place/
I"m not implying that you have the right to stand on a soap box and spout your political views in a public place. That would be a public "space". I"m saying you have no reasonable expectation of privacy in a public place, like you would in your motel room or in a restroom, which are not public places. The Casino we're talking about has cameras in the casino. They don't have cameras in your hotel room. One is a public place with no expectation of privacy, they other is not.
I do not disagree that a public place can have rules.
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jamedia.uk
Well-known member
Thanks for that. Can you explain the differences please (and the jurisdiction) IANAL and I know these small differences can be crucial.
Edit: thanks for the edit above with the link
Edit: thanks for the edit above with the link
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I don't, either. There is no way to know without a lot more detail, and even then, it's up to the court.
It's somewhat jurisdiction-dependent, but no, you don't.