Constitutional Law Copyright Law

Can Posting a Spoiler Violate Copyright Law? AMC Says “Hell Yes!” and “We’ll Sue You If You Do!”

Everybody hates Internet spoilers. You know,those people who either binge-watch a fully-uploaded whole season before you get to Episode 3 or who feel the need to review the most recent episode of a weekly show immediately after it airs while you planned on watching it via your DVR two days later. Spoilers like that are likely protected from copyright infringement claims over their use of the plot twists, character reveals, etc by the doctrine of fair use. Fair use is a defense to copyright infringement claims and is mostly applicable to commentary, criticisms, parody and educational uses. So talking about already-aired material is likely to fall under the fair use categories of commentary or criticism.

walking deadBut what if the person is issuing spoilers based on inside information before the show even airs? That’s apparently AMC’s concerns over folks intent on revealing spoilers about Season Seven of their most popular show The Walking Dead. They have sent a cease and desist letter to the publishers of a Facebook page called The Spoiling Dead Fans that AMC will take legal action if TSDF reveal the biggest secret of the Season Six finale cliffhanger: which popular character gets hit in the head by Negan, the season’s villain. IT seems TSDF has been getting inside info during Season Six that made its “predictions” about plot twists eerily accurate. So with Season Seven filing under way and with its premier coming up on October 23, AMC is taking no chances. Its cease and desist letter argues that TSDF’s use of any plot information before it airs would constitute an infringement of AMC’s copyright in the material. Copyright protects not only the original version of the material but any derivative use of the material. AMC is claiming this would be a derivative use of their work.

Are they right? Probably – copyright does not always attach to small snippets of material – even if original. But if the snippet is readily identifiable or if it is so connected to the overall work, then it can in fact be protected by copyright law. In music, courts have held that segments of two seconds and fifteen seconds long were protected under the law. The key is if the snippet is sufficiently original to be worthy of protection. Here, who (if anybody) was killed by Negan will be central to Season Seven of The Walking Dead. Now TSDF is still free to camp out near where Season Seven is being filmed to try and get pictures of the characters being filmed and so eliminate the visible ones from the list of suspected victims. But using inside information before it becomes public is likely to cause AMC to file suit and my prediction is that they would win under that scenario. TSDF apparently agrees since it stated publicly that it would not make use of any inside info passed to it. They admitted no liability in doing so and stated that the principal reason was lack of funds to take on a media giant. And that’s the simple truth – determining whether AMC has a valid claim would be an extremely expensive and time-consuming proposition. So right or wrong, AMC is the 800 pound gorilla in the room and TSDF is wise to not want to take that challenge on.

So it looks like we will all have to wait until October 23 to find out what happened at the end of Season Six.

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