Night of the Living Dead

[AndyJ]

Hi number6,

A US registered trade mark is only valid within the USA and there are no UK registered marks (registered by Image Ten or anyone else) using the words "Night of the Living Dead", so basically you can ignore their demand. That is assuming that you are not using somewhere like eBay.com* for your shop. Sites like eBay apply their own rules on alleged intellectual property infringement, and if Image Ten use that process, your shop may get suspended. However you have a right of appeal if this happens. You would then need to explain the situation to eBay as they will probably just take the registered marks at face value and assume that they apply to you, even though you are based in the UK and no doubt sell most of your products to UK customers.

Even if you are selling to US customers, Image Ten have a very weak case for saying there may be confusion so you can pretty much brush them off as they should realise it's pointless trying to sue you in the USA when you are domiciled in the UK. The only thing they would have in their favour in a confusion claim would be the fact that their registration No. 3,686,876 is for tee shirts, and so is the same type of goods as your product. You can ignore the other two registrations as a mark which is suspended has no validity as far as bringing a cause of action is concerned, and a mark registered after you began using your trading name has to overcome the defence of prior use (see 15 U.S. Code § 1115 (b) (5)) .

As for their comments about the images of actors, they are probably referring to the legislation in some US states (like California) which protects personality rights such as a person's likeness from being used in connection with trade in goods or services. However those statutes have no effect outside the State concerned. And since Image Ten don't seem to be claiming an interest in those personality rights, it's pretty irrelevant and probably just there to try and scare you off.


*eBay.co.uk would not face the same issue, as trading here is governed by UK law. "Contracting entity and responsible authority within the meaning of the data protection laws for eBay members in the UK: eBay (UK) Ltd, 1 More London Place, London, SE1 2AF"

[Hodgepodge]

I got sued for uploading a personal fanedit of Night of the Living Dead to Youtube. By the Royal Court of UK. Even though Youtube is an US company. They claim that the UK court has jurisdiction over this because the claimant is based in the UK and the infringement has caused harm to the claimant in UK. On this ground, wouldn't be impossible to upload any films, which are P.D in the US, in any US-service? There's always some country somewhere where the film isn't P.D.

Also, it seems like Night of the Living Dead is public domain in the UK. But the claimant claims that it is copyrighted under Copyright, Designs and Patents Act 1988

[AndyJ]

Hi Hodgepodge, and welcome to the forum,

Can you be a bit more specific about who sued you and what the claim stipulated? Did you defend the claim? You say the claimant is/was based in the UK, so I assume this was possibly a UK distributor of the film, who would not normally be deemed the owner of the copyright in the film, merely a licnesee. Are you also based in the UK?

While different countries have different copyright laws, there are a number of international treaties which mean that most countries will apply the same rules to a work of foreign origin as they would to a work produced domestically, although usually with the proviso that they would not provide a longer period of protection than would be available in the country of origin. In the UK this proviso (with respect to films) can be found in section 13B(7) of the Copyright Designs and Patents Act 1988. If you defended the claim when you were sued, your legal advisor should have argued this factor before the court. However if you chose not to defend the claim, obviously the court would not have taken this into account, nor could they know that the film was no longer protected by copyright in the country of origin. The fact that YouTube is a US company is irrelevant, since they were neither the claimant nor the defendant if you were the person who was sued.

[Hodgepodge]

Can you be a bit more specific about who sued you and what the claim stipulated?

Visual Ventures ltd, a company based in London. They request "award of damages" because I uploaded it (even though it only had five viewers at most). And they request "award of claimant's costs". Also they demand that Youtube should delete my account etc. They also claim that I intentionally lied to them saying that Night of the Living Dead is a public domain film.

Did you defend the claim? You say the claimant is/was based in the UK, so I assume this was possibly a UK distributor of the film, who would not normally be deemed the owner of the copyright in the film, merely a licnesee. Are you also based in the UK?

I'm not based in UK but in an EU country. How am I supposed to defend the claim? I guess I should get a lawyer or something? I got a copyright strike from Youtube, where I responded by stating that Night of the Living Dead is a public domain movie and gave some links to prove it etc.

The claim strictly says that the "claimant is the owner of the copyright of the film".

While different countries have different copyright laws, there are a number of international treaties which mean that most countries will apply the same rules to a work of foreign origin as they would to a work produced domestically, although usually with the proviso that they would not provide a longer period of protection than would be available in the country of origin. In the UK this proviso (with respect to films) can be found in section 13B(7) of the Copyright Designs and Patents Act 1988. If you defended the claim when you were sued, your legal advisor should have argued this factor before the court. However if you chose not to defend the claim, obviously the court would not have taken this into account, nor could they know that the film was no longer protected by copyright in the country of origin. The fact that YouTube is a US company is irrelevant, since they were neither the claimant nor the defendant if you were the person who was sued.

Thanks for the info. Any idea what I should do next?

[number6]

Hmmm...sounds very suspect to me.

My version is available on YouTube, Tubi and Amazon. No issues. Which version did you use? There could potentially be a problem if it's the 4k remaster or colourised version.

Telling them it's a public domain film is not an offence though...them claiming otherwise is a huge red flag to me, but I'll leave it to the experts.

Worth noting that there are dozens of versions of the movie on YouTube.

Good luck!

[Hodgepodge]

Hmmm...sounds very suspect to me.

My version is available on YouTube, Tubi and Amazon. No issues. Which version did you use? There could potentially be a problem if it's the 4k remaster or colourised version.

Telling them it's a public domain film is not an offence though...them claiming otherwise is a huge red flag to me, but I'll leave it to the experts.

Worth noting that there are dozens of versions of the movie on YouTube.

Good luck!

I made my own version, which is completely different than any other version. I re-cut it, re-graded it. Removed the music, replaced sound effects etc.

They also claim that I've repeatedly made false claims and abused the DMCA process, which is a lie. And that the claimant has suffered and will continue to suffer substantial irreparable harm and injury. For a amateur fanedit, which was seen by max 5 people!

[number6]

What version did you use as the source?

[Hodgepodge]

What version did you use as the source?

Several public domain sources in where the reproduction has been far from faithful

[number6]

Hmmm...Visual Ventures Ltd only registered as a company 3 months ago. I would just ignore it. They don't own NOTLD. Nobody does.

YouTube should remove the strike in a couple of weeks. Don't worry about it.

All the best

A

[Hodgepodge]

Hmmm...Visual Ventures Ltd only registered as a company 3 months ago. I would just ignore it. They don't own NOTLD. Nobody does.

YouTube should remove the strike in a couple of weeks. Don't worry about it.

All the best

A

Thank you!

I did some more digging. The "sitting as a deputy high court judge" named in the claim letter has been dead for years. https://www.telegraph.co.uk/obituaries/ ... -landmark/

So I guess some fraud has copied an old official copyright infringement claim and has inserted some new bits of information here-and-there so that they would appear convincing... Sounds very strange, is this common?

[number6]

Ahhh...
I don't know if it's common. Numerous people came for my version (as you will have seen on this thread). I think it's getting more common, but I'm sure that the experts here will know more.

Interestingly, you may have a case for attempted extortion, especially as they are banding about the names of dead judges.

[AndyJ]

Hi HodgePodge,


Yes as Number6 says they only registered as a company in April of this year and they claim to be a rights management company - in other words they are in the same business as companies likes PicRights and VisualRights Group, among many others. They have to prove that they own the copyright in the film, and they obviously don't understand how the UK court which deals with claims under £10,000 in value operates, since they are not entitled to their legal costs under that system. Furthermore since you are not resident in the UK, it would cost them a great deal more in legal fees to get a judgement of the UK court enforced in your country.