In an unusual preemptive suit, a Texas man claims the “fair use” exception to copyright liability applies to his Internet publication of a videotape that supposedly shows a Bigfoot snacking on pancakes.

Craig Woolheater, co-founder of the Texas Bigfoot Research Center, filed the suit last week, alleging that another Bigfoot researcher, Matt Moneymaker, has accused him of infringing the copyright to the video and threatened him with financial ruin for posting the tape on the Cryptomundo.com Web site “as part of a discussion on video evidence of Bigfoot.”

Moneymaker shot the murky nighttime footage in July 2005 while investigating the supposed sighting of one of the mythical, ape-like creatures in Kentucky. What he has described as a “real deal” Bigfoot helps itself to syrup-smothered pancakes left as bait in the backyard of a home.

The video originally appeared on a Web site operated by Moneymaker's Bigfoot Field Researchers Organization (BFRO). “Plaintiff's publication of the Video is protected ... as a fair use of copyrighted works for educational, research, and newsworthy purposes,” the complaint for declaratory relief states.

The “purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes” is part of the statutory test for fair use. The video posted by Woolheater on Cryptomundo is accessible free of charge.

Another element of the fair use test -- the “nature of the copyrighted work” -- also appears to favor Woolheater. The video, shot with a motion-sensing camera from a fixed location, is a “factual work,” which qualifies for less protection than an “artistic representation” of ideas, emotions, or feelings.

The 9th U.S. Circuit Court of Appeals has ruled that a TV station's unlicensed broadcast of news video was not a fair use, in part because of its damaging effect on “the potential market for or value of the copyrighted work.” Los Angeles News Service v. KCAL-TV, 108 F.3d 1119 (1997)

But according to Woolheater's suit, Moneymaker may have himself facilitated the unlicensed use of his work. After the BFRO site experienced download failure due to high demand for the video, the suit says, he “advised members of the BFRO community to 'feel free to send it to others in the group'” -- and one of those members allegedly gave a copy to Woolheater in September 2005.

In another fair use case, the 1st Circuit found the potential market for a model's portfolio photos “small or nonexistent.” Núñez v. Caribbean International News, 235 F.3d 18 (2000)

The same could be true of the market for the Moneymaker tape, particularly if, as several Cryptomundo readers conclude, the Bigfoot sighting is nothing more than a hoax perpetrated by someone dressed up in an animal costume.

2/19/07