In 1981, a trio of 10-year-olds saw Raiders of the Lost Ark and were awestruck. Awestruck enough to make film their own shot-for-shot remake over the next seven years. After spending years as the stuff of urban legend, the film reemerged last year, wowing Raiders director Steven Spielberg and other fans. The tribute film has even recently been shown on the big screen.
Of course, what they did was quite possibly illegal. Continues inside . . .
(All references are to the Copyright Act, codified at 17 U.S.C.)
There's no doubt that Raiders of the Lost Ark is a work still under copyright. Even under the original Copyright Act, Raiders would still be under copyright, since 1981 was 22 years ago, and 22 is less than 28 (one 14-year term plus one renewal 14-year term).
Since Raiders is a copyrighted work, § 106 makes it an infringement of copyright to "reproduce [it]," "to prepare derivative works based on [it]", to "distribute" it, or "to perform [it] . . . publicly." The tribute film is definitely a derivative work; it's probably a reproduction, too. By their own admission, the boys worked from Raiders; as long as the resulting film shows "substantial similarity" to the original, it counts as a copy for copyright infringement purposes. It would be hard to argue that a (quite faithful) shot-for-shot remake is not sufficiently similar to the original. Since the tribute film is a "copy," it also counts as infringement to distribute it (which someone did, to get a copy into Harry Knowles's hands) and to display it (which they did at the recent screening in Austin). There's probably also a good argument that their 602-frame storyboarding is itself a derivative work.
Their first line of defense is to claim fair use under § 107. The analysis here is mixed; two of the four fair use factors cut in their favor, and two against them.
- The "purpose and character of the use" comes out fairly well for them, since the film was a private project made for their own enjoyment, and never widely distributed. On the other hand, the recent screening, to which admission was charged, undercuts a potential claim of "non-commercial" use.
- The "nature of the copyrighted work" could hardly be worse for our heroes. Raiders is one of the highest-grossing motion pictures of all time.
- They also don't look so good in terms of "the amount and substantiality" of Raiders that they borrowed. They remade the whole damn thing, after all.
- Fortunately, though, the "effect of the use on the potential market for" Raiders has been basically nil. Such are the benefits of never revealing its existence to the public at large. (One could even argue that this fan flick increases audience enthusiasm for Raiders and thereby increases its market, although such an argument might not get any further here than it has for file-traders.)
All in all, I'd expect a court or jury to look pretty sympathetically on them, but then again, these have been some pretty dark years for fair use defendants.
Their next possible defense is to point to the three-year statute of limitations for civil copyright infringement. § 507(b) states that the statute of limitations runs for three years from when "the claim accrued," not from when the infringement was discovered. That means that their 22-year-old derivative work is shielded from suit, along with any copies of it that they made before mid-2000.
They're not out of the woods yet, though, because their remake is (probably) still a copy, so it's infringement to make fresh prints of it, and to screen it, both of which seem to have taken place in the last couple of months. (Kind of an interesting loophole here, no? If you make a derivative work sufficiently different for it not to be a "copy" and then keep the derivative work secret for three years, you'd appear to be in the clear).
Remedies (§§502-05) are largely in the discretion of a court, but it is at least possible to list the range of things that could happen to these three "kids" (now in their early 30s). They could be enjoined from copying or showing their film; all extant copies could be seized and destroyed. They could be forced to turn over the proceeds from recent screenings; they could be forced to pay for lost profits, but it seems unlikely that plaintiffs would be able to prove that the market value of Raiders had dropped appreciably because of the adaptation.
That leaves statutory damages, under § 504(c)(1), of $750 to $30,000 "as the court considers just." (Since there's only one copyrighted work in question here, there'd be none of those multi-billion claims that brought MP3.com to its knees.) Further, under § 504(c)(2), if the court finds that the "infringer was not aware and had no reason to believe" that he was infringing, it can reduce the damages to $200, a mere $66.67 per defendant. They were, of course, 10 years old when they started infringing. (On the other hand, they're now adults who ought to know better). So they're probably not out of pocket for too much, but if a court decided that the infringement was "willful" it could pump the damages up to $150,000, (plus possibly the other side's legal fees), which is not to be sneezed at.
Willfulness would also expose them to criminal penalties under § 506. Unfortunately, the legal standard for "willful" infringement is not entirely clear, since the question is one for the jury. (MP3.com was considered a "willful" infringer even though it maintained that it had always thought its actions didn't constitute infringement at all.) If our trio had any idea that their work might be a copyright infringement, it is possible that they might be found to be willful infringers. Again, they seem in more danger for their recent actions than for the things they did as teenagers.
The remaining triggers for criminal infringement aren't hard to satisfy. The recent screening was probably for "commercial advantage, but more importantly, their version of Raiders may well have a total retail value of more than $1,000 (just think about how much it would go for on eBay). Criminal penalties for copyright infringement are not to be sneezed at. 18 U.S.C. § 2319 provides for jail terms of up to a year (for a first offense involving fewer than 10 infringing works) and fines. Fines of what size? Well, copyright infringement starts at level 6 on the Federal Sentencing Guidelines, which works out to a fine of $500-5000, But the level goes up as the value of the infringing works rises. If we say that the new film has a value of $10,000, the infringement is a level-9 offense, with a fine of $1000-$10,000.
The one remaining question is whether what these boys did was authorized--if so, there's no case of infringement at all. Since no one even knew about the project until the last few years, everything they did in the 1980s was ipso facto unauthorized. On the other hand, it's quite possible that once Steven Spielberg found out about the film, he (and Lucasfilm and Paramount) signed off on the recent screening, which would more or less rule out infringement claims for anything recent enough to fall within the statute of limitations.
Harry Knowles has been saying that the remake should be a special DVD extra on the Indiana Jones DVD box set. That sounds like a good idea.
At the same time, don't you find it just a little incongruous that, according to the Copyright Act, these fellows could be ordered to pay out $50,000 each and report for a year in prison?