In a somewhat surprising move, Ontario based Marineland have just announced their plans to sue 19-year old student Zach Affolter for $1m. It raises a number of interesting issues, and the case may yet backfire on Marineland.As a quick background, Zach acquired Orca footage online that was allegedly filmed by one or more employees at Marineland, and this has been edited into a movie called Black Water. No doubt it shows Marineland and their treatment of Orca in a less-than-complementary way, and they are trying to avoid this getting into the public domain. The basis of Marineland’s case is that Zach is making money from their intellectual property, and that the footage was filmed illegally.
In terms of defence, presumably then Zach can argue he is not making money from the movie. Should it be provided online for free for example, it takes away Marineland’s case of pecuniary advantage. Secondly, and as already acknowledged by Marineland, the footage was not filmed by Zach, but rather one of its own employees. I’d suggest this person is keeping a low-profile right now, but if Zach was not the one who filmed the content, it is a long bow to draw to be suing him.
Marineland in trying to keep this footage hidden only raises questions in people’s minds -If they have nothing to hide why are they so desperate to keep the footage concealed. People are free to express their opinion on material they find online. The Panama papers is a great example – This material was in fact acquired illegally, but people in possession of said material are free to go expressing their opinion on it.
It does beg the question as well, to what extent will Marineland go to avoid negative publicity? Would they also sue a 10-year old who visits the park and posts negative comments and images?
It’ll be interesting to see how this plays out. In bringing the case, Marineland is trying to stop the material becoming public, but that will only increase people’s interest in what they are trying to hide? Lots of free publicity for Zach and his home-made movie. Post the video online for free and watch Marineland scramble around trying to stem the flow of publicity.
Good luck Zach!