Mile High Battles Over Artwork Copyright Issue in Bassett Lawsuit

BOSTON—It's been almost two years since Martha's Vineyard homeowner Leah Bassett filed a lawsuit against Mile High Media, Gamma Films, Nica Noelle and several Mile High contractors, claiming that the defendants had broken local laws by filming hardcore scenes in her house, which she had rented to them during the winter of 2014, and of allowing various of Bassett's furnishings and artworks to appear in the finished DVDs. And now, the extent to which those latter claims should be litigated at trial was discussed at a hearing yesterday before U.S. District Judge Patti B. Saris. At issue are paintings and sketches created by Bassett, as well as hand-stitched pillows, a fireplace and a hand-painted table, all of which appeared briefly in one or more of the 14 adult videos shot for Icon Male by Noelle and her crew at Bassett's house—and none of which had Bassett gotten around to copyrighting until two years after she sued the video producers. As a result of this litigation, Mile High has pulled the 14 features in question from the market, though Bassett's attorneys claim that they can still be obtained through other sources—and that "22,000+ stand alone Stills" taken during shooting are available as well, many of which do show the items for which Bassett is claiming copyright. "In the case at bar, it is indisputable that Ms. Bassett applied for, and received from the U.S. Copyright Office, three Registration Certificates, dated September 29, 2016, which collectively encompassed a total of 53 of her 'Works' that she had created and installed in her personal residence as part of its interior decor," Bassett's attorneys argued in their Memorandum in support of their Summary Judgment motion. "Here ... it is undisputed that the Mile High-owned porn films and Stills shot on Ms. Bassett's residence incorporated her Copyright-protected Works in photographic form just as they appeared visually in their original form throughout her house." In her complaint, Bassett had claimed that seeing those works in the defendants' features caused her enough mental distress that she had to seek professional help to overcome those feelings. But Mile High's attorneys were having none of that argument. "With respect to Plaintiff’s equitable argument, Defendants addressed in their Motion the fact that any appearance of these items in the films was never a conscious decision to portray copyrighted work," the Mile High attorneys argued in their Response to Bassett's Summary Judgment motion. "These items were not registered at the time. Nor do they stand out as copyright protectable items. There is no evidence whatsoever that Defendants intentionally sought to portray copyrighted work (even to the extent copyright protection exists). Query: Who in the world would ever think these miscellaneous household items were being claimed as copyrighted? "Defendants did not use them or focus on them," the Response later states. "Nor do they have any bearing on the films. They were just there. Seeing these films reinforces the point that not a single person who watched these films would notice these items. Even when you know what to look for it can be difficult to focus on the items." In other words, Mile High claims that though the copyrighted works appeared in its features, their appearance was so minor as to constitute fair use. However, at the Tuesday hearing, Judge Saris made it clear that she has no intention of investigating the extent to which Bassett's works appear in the features, and that the attorneys for both sides would have to find some other way to quantify those works' screen time. "How do I decide?" Judge Saris asked the attorneys. "Short of watching every movie myself—which I do not intend to do—and I do not intend to have a jury do it. I can’t ask a jury to sit through that kind of a movie for hours and hours. That is not what’s going to happen here." But Mile High's attorney Gary Jay Kaufman felt that the whole idea of timing how long each object appeared in any particular video was simply absurd. "I would bet my life savings … if you polled every juror in the world, not one would say, 'I saw this film and focused on the etching or the stitching on the slipcover,'" Kaufman told the judge. On the other hand, Law360.com reported that attorney John A. Taylor, representing Ms. Bassett, claimed that he had already timed how long all of the objects in question had appeared on screen, and that the total time for all the works appearing was 473 seconds aka 7.9 minutes—not exactly what anyone would call massive coverage. The hearing, which lasted several hours and covered several topics, apparently led to no conclusions yet on any of the issues, and no date was given either for that hearing's continuation nor for when trial on these issues would commence.