BOSTON, Mass.—One might wonder how various artworks that appeared for as little as 30 seconds in a DVD, and which were only copyrighted two years after the production was complete and the DVDs were being sold, could nonetheless qualify for compensation for copyright violation—but that's exactly how U.S. District Judge Patti B. Saris ruled for Martha's Vineyard homeowner Leah Bassett yesterday in Bassett's long-running lawsuit against Mile High Media and director Nica Noelle.
"Even works featured in a background are entitled to copyright protection where they are 'clearly visible,' such that the medium and style would be discernable to 'the average lay observer,'" Judge Saris wrote in an Order issued yesterday.
Mile High had presented various arguments asserting that Bassett's copyright claims should be denied, including the claim that the works were shown only momentarily—or in legal terms, "de minimis"—in the 10 Icon Male features and two compilations that are the subject of the suit; that the works lacked originality or were "merely utilitarian"; and that in any case, their appearance in the DVDs constituted "fair use" under copyright laws.
Moreover, even Judge Saris recognized that Bassett had only copyrighted the works long after the fact in anticipation of suing the defendants, whose main "offense" was that they had rented Bassett's house and shot porn there without revealing that fact to the owner.
When Judge Saris had first considered the copyright claims last May, she deferred ruling on the copyright issue because she had "no reliable information" as to the extent that Bassett's artworks appeared in the features, and assigned Bassett the task of augmenting the record with details of the works' use—a task that Bassett tackled with a vengeance over the 45 days she was given to provide the information.
"Bassett submitted to this Court tables of contents for each of Defendants’ ten films accompanied by hundreds of pages of screenshots," the judge noted in her Order. "Based on these submissions, the Court concludes that at least one of Bassett’s copyrighted works appears in each of the ten films in a greater than de minimis capacity—specifically, at least one work is clearly visible for at least 30 seconds (at one time or in aggregate) in each of the ten films."
In other words, even if one of Bassett's paintings or "wall hangings" appeared in the background of a scene, whether sex was taking place at that time or not, for as little as 35 seconds, or in at least one instance, for four-and-a-half minutes, that was enough exposure to make Mile High liable for violating Bassett's belatedly obtained copyright, and Judge Saris therefore denied Mile High's motion to throw out the copyright claims. Instead, the judge is allowing Bassett to press those claims when the lawsuit finally goes to trial—though she ordered Bassett to file an "expert report" within 30 days of her Order "to determine the appropriate measure of damages for works that appear in each film for a greater than de minimis capacity, meaning a substantial majority of the copyrighted work is 'clearly visible' for at least 30 seconds in aggregate." Mile High will have 30 days after that report is submitted to file its response to the report.
Of course, one has to wonder how anyone would be able to calculate the monetary damages Bassett suffered by having her artworks appear in a XXX feature. One might think that, if anything, those artworks would increase in value if they were marketed to collectors as having appeared in porn movies—movies which Mile High has already withdrawn from the market—and there has been so far no allegation that Bassett intends to sell the pieces.
Among the allegations still on the table are the damages Bassett claims to have incurred repairing her home after Noelle's crew completed filming and vacated the premises, which she calculates to be $15,000 in lost rent, property damage and other costs attendant to fixing up the property, as well as the charges of "unfair trade practices," civil conspiracy—and emotional distress, for which she claims to have needed therapy because people had sex in her house and on her furnishings.
The trial in the case is set for February 1, 2021, though a pretrial conference has been scheduled for mid-January.
The Order of Judge Saris, dated August 6, 2020, may be read here.
