Dave Stern: It’s a good question because it really comes down to: the risk is tied to the exposure. If five people see a movie, the risk is low; if 10 million people see a movie, the risk is high. Something could be on YouTube but only have 500 views and perhaps 500 people have seen it; the risk is fairly low. Regardless of the method of distribution, it’s really about the volume of people who have seen it.
If someone has been wronged or their intellectual property (IP) rights have been used in the production without their permission, they will only contemplate a claim if they know about it, so it’s a question of visibility and exposure.
With respect to an online platform that is easy to self-upload, self-distribute, such as YouTube, there are other remedies one could take that would not be available otherwise. E.g., if a third party has their IP infringed – a piece of their artwork was shown in a feature film without their consent – if they see this on YouTube, they can simply report it. Individuals have reporting rights for IP or copyright infringement that would ultimately result (in most cases) in the takedown of the content. So, the feature film might actually be taken down because somebody clicked a few buttons and completed a small form online.
If a film is a Hollywood blockbuster that is exploited theatrically, if someone sees it and they’re upset by the same infringement, the remedies that they can pursue are not exactly limited but more complex and costly for them to do so. That would be the major difference – [with self-distribution, such as YouTube] there is that added layer of ease for individuals who have been infringed upon to file a report and get content taken down, which could significantly impact the future prospects of the film.
Dave Stern is an entertainment lawyer and partner at Blaney McMurtry LLP
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