Interesting, but as a content creator I can't help feeling it alludes to cases but fails to set any standards for how to handle them.
For example, just now I'm thinking about the costs of getting a release to shoot video in a private location (a shopping center). It would make my film look more interesting but hurt its budget. If I shoot by stealth (not so hard with modern cameras) they would have a copyright complaint against the film and could sue for damages. The copyright claim subsists in the interior architecture, configuration and decoration of the building.
But what if I release my film for free, just to say 'hey look at my film (and consider investing in the next one)'. The analogy would be using an allegedly proprietary algorithm in a piece of open-source code, I suppose. There's an indirect commercial gain on my part (if it proves popular), but should the IP owner have a claim on a free work?
The proposal does include a threshold of whether such a violation does harm to a business, or is likely to. Unfortunately, that puts the defendant in such a case in the position of having to prove a negative, ie that the complainant's allegations of likely harm are unreasonable. If my shopping center scene involved a successful pickpocket, they would have a good claim, but suppose they just complain that I made it look drab or old-fashioned?
Here's info about a documentary film not wanting to get pay performance rights simply to include a ringtone of one of the students sounding.
I had thought there had been a recent change in law or at least that the consensus opinion on this (which I disagree with) is that the use in Mad Hot Ballroom (see links) was fair use (incidental) and didn't require rights holders consent.
My view is that if the ringtone (building in your case) is incidental then you can film without it or use a non copyright soundtrack edit (different building) and it won't matter.
What's fun about the law system is that each case is open to interpretation, because of its particular circumstances.
If, for example, you trade emails with the film crew saying you couldn't get permission to shoot but was going stealth anyway, and you use the mall as a location this week and in a couple days you send funding requests using only this particular movie, and the mall has a central role (as in Mallrats), then yes, you're using the mall as part of a (soon to be) commercial venture.
But if your mall movie was filmed 5 years ago (and now the mall went through a reform), was just a gathering place because the actress lives 5 minutes away from it, and the movie using it is just part of your portfolio of dozen, than I don't think any law system would judge against you.
The law is not a tech spec. Finding the balance between the two extreme examples above is the whole purpose of a government branch :)
Edit: The mall case would probably pend to a trademark side, but the point remains. Law is hard, let's go shopping! (just not on the same mall as the movie)
The fact that we've gotten so far into this ridiculousness that the interior of a building that is open to the public is somehow considered "protected by copyright" is preposterous. This is not at all what the founders had in mind.
For example, just now I'm thinking about the costs of getting a release to shoot video in a private location (a shopping center). It would make my film look more interesting but hurt its budget. If I shoot by stealth (not so hard with modern cameras) they would have a copyright complaint against the film and could sue for damages. The copyright claim subsists in the interior architecture, configuration and decoration of the building.
But what if I release my film for free, just to say 'hey look at my film (and consider investing in the next one)'. The analogy would be using an allegedly proprietary algorithm in a piece of open-source code, I suppose. There's an indirect commercial gain on my part (if it proves popular), but should the IP owner have a claim on a free work?
The proposal does include a threshold of whether such a violation does harm to a business, or is likely to. Unfortunately, that puts the defendant in such a case in the position of having to prove a negative, ie that the complainant's allegations of likely harm are unreasonable. If my shopping center scene involved a successful pickpocket, they would have a good claim, but suppose they just complain that I made it look drab or old-fashioned?