I Will Begin with the Simplest Violation on Your Website

Memo to: S. Meers

From: Carol Rainey

Date: April 13, 2012

Mr. Meers,

It has come to my attention that your website, stands in substantial violation of copyright issues related to my documentary film-in-progress about that case. As you are aware, legal determination of “fair use” is anything but definitive, with cases brought to court each decided on their own narrow specificities. In the real world of copyright law, there are no black-and-white certainties such as you possess about your right to post stolen footage owned by another.(The matter of extensive theft of physical propertyand your knowing utilization of such stolen property will be brought separately from the issue of fair use in this communiqué.)

My attorney and I are confident that your use of the material listed below does not pass the four-factor balancing test under US trademark law. As a courtesy, I am sending you this one personal request that you pull down the offending material within the next 24 hours after transmittal of this memo. If that is not done, attorneys will take over.

I will begin with the simplest violation on your website:

1. My UFO Updates post of March 10, 2011, now posted on your site.

On the first page of UFO Updates, the policy of the site states clearly:

“Permission mustbe obtained from both the poster and the List Moderator to reproduce UFO UpDates posts anywhere else.”

You have never requested my permission and I do not give it. Remove the post immediately.

2. Four factors: As to the additional copyright infringements on your site, you should be aware that in determination of “fair use,”the court always looks at the following four factors:

a.The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

b. The nature of the copyrighted work;

1. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

1. The effect of the use upon the potential market for or value of the copyrighted work(from Wikipedia.org/wiki/Fair_Use).

Your use of my original materials does not serve any broader educational purpose—nor is it “transformative” in anyway related to public education. On the contrary, it is grossly promotional of a certain narrow interpretation of anomalous human experiences. It does nothing to broaden public dialogue about these genuine human mysteries but rather further attempts to fire up a “debunkers versus seekers-of-truth” mentality in the UFO community of interest. You accomplish thison the site through use of derogatory and demeaning language about anyone who criticizes the recovered memory methodology and findings of your mentor, Budd Hopkins, and his most controversial subject yet, Linda Cortile.

Far from educational, your use of my original audio/video material is essentially self-serving. It is intended to elevate your position and bring attention to yourself in the marginal subculture called “ufology,” or the study of UFOs. For example, your point that your use of Rich Rosenthal’s footage, owned by me, shows that Budd was supervised in his work and had genuine collaborators is entirely false. It shows nothing of the kind--only that Budd had a conversation with a former NYPD employee—not that the man in any way shaped the case or substantially contributed to vetting the facts about the Cortile case. He emphatically did not and your use of that footage does not demonstrate your point. Therefore your use of my original footage--never before seen--is not educational in any way: it is erroneous, misleading, a copyright infringement, and a theft.

For each one of the videos you have used, I will mount a similar argument as to why each one does not meet “fair use” standards.

I assume you understand that the burden is on you, the defendant, to show “educational value,” which, in this case, would mean you would have to prove in a court of law that both alien abductions and the Linda Cortile case are true, evidence-based, event-level occurrences of great concern to the public. The best minds in ufology have never been able to pass that bar, unfortunately.

Neither is your website registered or designed to be educational at all (.edu). It is, in fact, a dot com, a commercial, for profit website: You are “selling” a belief system and attempting to use my copyrighted, original work to promote dogmatic, simplistic ideas about a complex phenomenon that I do not share. That is both illegal and highly unethical.

As to the nature of the material used—you have posted stolen footage on a public website for purposes of self- and ideology promotion.You have posted to your website, lindacortilecase.com, original footage shot by me, paid for by me, owned exclusively by me, for a documentary that is in progress. Although I have posted several excerpts of the film to YouTube, I have deliberately withheld some videotaped material for inclusion in the final film.The footage of Robert N., Rich Rosenthal, John Cortile, and Jay Sapir has never been seen by the public—not in any forum. By your posting of audio portions of these multiple videotapes (in 3-7 minute clips), along with many pages of transcripts of said video, you have substantially devalued the worth of my film and made it difficult to acquire post-production funding.

The amount of material posted on your site (both in lengthy and multiple audio clips of several subjects and in lengthy transcripts) and the substance of content far exceeds “fair use” doctrine. Along with promotion of your views on the subject of UFOs, you utilized my footage in a way that brings premature disclosure of information about the content of my film, with the specific result of lessening public interest in the final film. That, of course, leads directly to significant decrease in the film’s market value(“we’ve already seen that”) and my ability to raise post production funding for it.

Wikkipedia’s summary of Fair Use states: “The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his or her original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. In the aforementioned Nation case regarding President Ford's memoirs, the Supreme Court labeled this factor "the single most important element of fair use."I have worked on this film for 10 years and can put a dollar figure on that time and the potential revenue of a non-despoiled film.

As to Linda Cortile’s rights to the footage, which you cite—she has none. She cannot either disperse my footage or the rights to it to anyone. Those rights “are the sole property of the Producer.” Again, your claim of right to usage is erroneous. Please see Paragraph 2 of the release she signed on 1/17/96:

InFolsom v Marsh, 9 F.Cas. 342, the court rejected the defendant's fair use defense with the following explanation:

[A] reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy...

In short, we must often... look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work.

In summary, and for the reasons stated above, I hereby request that the following material owned by me and stolen from my studio be removed from your website ( within 24 hours of transmittal of this message:

1. Transcript of Rich Rosenthal videotape, approximately 4 pages of transcribed interview between me and Mr. Rosenthal.
2. A 7:00 audio portion of Rosenthal video, shot by me
3. A transcript of Johnny “Cortile,” taken from video produced and directed by me
4. A 6:33 audio portion of a videotape of John “Cortile” shot and owned by me—a description of allegedly meeting UN official deCuellar.
5. 4 audio portions of videotaped witness Robert N., stolen from my studio, and used to excessive length in 3-4 minute segments each.
6. Transcript of Robert N. videotape
7. Audio portion of videotape of Phillip Klass shot and owned by me, never before seen in public and stolen from my studio.
8. Audio portions of videotaped interview with Jay Sapir by me, 3 clips varying in length from 2:47 to 3:35—never before made public.
9. Transcript of videotaped interview with Jay Sapir by me, same
10. Audio portion of videotaped interview with Linda Cortile by me.

It is my hope that you will be able to disengage your personal feelings about this case long enough to realize that it is possible for us to resolve these strictly legal issues calmly and without resorting to further action.

Sincerely,

Carol Rainey

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