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Stanford Law School’s Fair Use Project and Foley Hoag Defend Documentary Filmmaker’s Fair Use and Free Speech Rights; Seek Damages for Wrongful Takedowns

Publication Date: 
October 11, 2007
Source: 
Stanford Law School

STANFORD, Calif., October 11, 2007—The Fair Use Project of the Center for Internet and Society at Stanford Law School and its co-counsel Foley Hoag LLP filed an answer and counterclaim in Massachusetts federal court Tuesday on behalf of filmmaker Floyd Webb, who is being sued over material he is using on the Internet to promote a documentary about Count Dante, an enigmatic, Chicago martial arts legend from the 1960s who founded the Black Dragon Fighting Society. The society’s current “Grand Master,” William Aguiar III, alleges that Webb’s promotional website and film trailer infringe copyrights and trademarks that Aguiar now controls. But Webb believes he has the right to use the disputed material under the “fair use” doctrine and seeks damages against Aguiar for misrepresentation of copyright under the Digital Millennium Copyright Act.

Chicago-based filmmaker Floyd Webb is making “The Search for Count Dante,” a documentary chronicling the real-life odyssey of martial arts master John Keehan who introduced a self-styled version of martial arts to America in the 1960s and 1970s. Keehan changed his name to Count Juan Raphael Dante, described himself in popular comic books as holding the “world’s deadliest fighting secrets,” adopted the moniker “Crown Prince of Death,” and founded an organization he called the Black Dragon Fighting Society.

Count Dante played a role in launching the first "world Karate tournament" in Chicago in 1963 and was reputed to have trained Black and Latino students at a time when rival dojos would not. His students dominated the competitive karate scene in the 1960s. Dante was a pioneering advocate of no-holds-barred mixed martial arts (MMA) in the 1960s, and he was rumored to have once challenged Muhammad Ali to a boxing match.

Dante was also reputed to be a hairdresser for Playboy models, a classically trained singer, and made claims to have been a U.S. Army Ranger who helped arm Fidel Castro in a 1959 mission called “Operation Water Buffalo.” In addition, Dante is alleged to have been the mastermind behind the Purolator Vault robbery—one of the most notorious heists in Chicago history—as well as the instigator of the infamous "dojo wars" that resulted in the death of his colleague and friend.

Webb’s documentary seeks to separate fact from fiction, and he created a trailer and website to raise awareness about the film, and to track the progress of his research into Count Dante’s life. Webb posted the trailer to his website, www.thesearchforcountdante.com, and to YouTube (www.youtube.com). Aguiar, the son of a Dante protégé, sent takedown notices and cease-and-desist letters claiming that Webb’s trailer and website infringe copyrights and trademarks that Aguiar owns—specifically images and logos of Count Dante and Black Dragon Fighting Society.

In September, Aguiar filed a lawsuit against Webb in United States District Court, District of Massachusetts, alleging copyright and trademark infringement. Webb denies Aguiar’s claims, and in his counterclaims Webb seeks injunctive relief and damages for misrepresentation of copyright under the Digital Millennium Copyright Act. Webb also seeks declaratory judgment that his use of certain images and logos in the trailer and on his website does not constitute infringement of any copyrights or trademarks that Aguiar is authorized to assert against him.

“It’s unclear that Aguiar owns any of these rights in the first place,” explained Anthony Falzone, the executive director of the Fair Use Project at Stanford Law School. “What is clear is that Floyd Webb has every right to use the material at issue under the Fair Use Doctrine. His First Amendment rights are at stake here.”

“The infringement claims are not valid,” said Brandy Karl, Residential Fellow at the Center for Internet and Society. “We intend to make sure that Floyd Webb and other documentary filmmakers are not silenced by such threats and baseless takedown notices.”

In February of this year, the Fair Use Project (FUP) launched a collaborative insurance program to provide critical support for documentary filmmakers who rely on the “fair use” of copyrighted material in their films.

“The case against William V. Aguiar III is perfect example of why documentary filmmakers need to have legal help in their corner—so they can stand up for their ‘fair use’ rights because their films depend on the inclusion of copyrighted material they seek to comment on, discuss, and contextualize,” said Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School.

In addition to lawyers from the Fair Use Project, three lawyers from the Boston office of Foley Hoag LLP are serving pro bono as local counsel to Webb in this matter—Michael Boudett, David Kluft, and Walead Esmail. Foley Hoag has an extensive practice in intellectual property litigation and a demonstrated commitment to pro bono activity in support of artists and first amendment rights.

About the Fair Use Project

The Stanford Center for Internet and Society's "Fair Use Project" ("the FUP") was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom. The FUP represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights. In doing so, it relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations that are dedicated to advancing the mission of the FUP. The FUP provides an expanding array of assistance to content creators. It has advised prominent creators and distributors of documentary films concerning fair use, defamation, trademark infringement, and other issues relating to the appropriate bounds of free expression. While is impossible to eliminate completely the risk of a dispute, this analysis helps reduce and identify liability and litigation risks before the fact, so that informed decisions can be made.

About the Center for Internet and Society

The Center for Internet and Society is a public interest technology law and policy program at Stanford Law School and a part of the Law, Science and Technology Program at the law school.

About Lawrence Lessig

Lawrence Lessig is the founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School. Professor Lessig represented website operator Eric Eldred in the U.S. Supreme Court case Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act. He was named one of Scientific American's Top 50 Visionaries for arguing "against interpretations of copyright that could stifle innovation and discourse online.”

About Anthony Falzone

Anthony Falzone is the executive director of Stanford Law School’s Fair Use Project. He is an intellectual property litigator with more than eight years of experience and has represented technology and media clients in a wide array of intellectual property disputes including copyright, trademark, rights of publicity, and patent matters. Prior to joining Stanford Law School, he was a partner in the San Francisco office of Bingham McCutchen LLP.

About Brandy Karl

Brandy Karl joined Stanford Law School in 2007 as a residential fellow at the Center for Internet & Society, where her work includes public interest litigation and other projects related to technology and intellectual property regulation. Karl's research interests focus on developments in copyright law and the application of the fair use doctrine. Her publications include topics ranging from the politics of the Supreme Court to trademark dilution. Prior to joining the Center, Karl practiced copyright and trademark law in Boston as principal of her own firm. She is a 2001 graduate of MIT and a 2004 graduate cum laude of Boston University School of Law, where she was a Paul J. Liacos Distinguished Scholar and an articles editor for the Journal of Science and Technology Law.

About Stanford Law School

Stanford Law School is one of the nation’s leading institutions for legal scholarship and education. Its alumni are among the most influential decision makers in law, politics, business, and high technology. Faculty members argue before the Supreme Court, testify before Congress, and write books and articles for academic audiences, as well as the popular press. Along with offering traditional law school classes, the school has embraced new subjects and new ways of teaching. The school’s home page is located at www.law.stanford.edu.

About Foley Hoag LLP

Foley Hoag LLP is a leading national law firm in the areas of dispute resolution, intellectual property, and corporate transactions for emerging, middle-market, and large-cap companies. With a deep understanding of clients’ strategic priorities, operational imperatives, and marketplace realities, the firm helps companies in the biopharma, high technology, energy technology, financial services and manufacturing sectors gain competitive advantage. Two hundred and fifty lawyers located in Boston, Washington, and the Emerging Enterprise Center in Waltham, Massachusetts join with a network of Lex Mundi law firms to provide global support for clients’ largest challenges and opportunities. For more information visit www.foleyhoag.com.

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EDITORIAL CONTACTS

Stanford Law School:
Judith Romero
Associate Director of Media Relations
650.723.2232
judith.romero@stanford.edu
www.law.stanford.edu/news

Foley Hoag LLP:
Meghan Magner
Public Relations Manager
617.832.7112

COMMENT

Stanford Law School:
Anthony Falzone
Executive Director, Fair Use Project
650.736.9050
anthony.falzone@stanford.edu