This generation has arguably seen more changes to the use and re-use of content than the combined generations of the last 100 years. Whilst copyright law continues to re-address new issues emerging trends are well documented.This document argues that the source use that has taken place to produce the Bible Movie App has transformed both the product and the use. Numerous cases and examples are cited as defensive arguments.

Depending on the facts of any particular case, existing exceptions may apply to some transformative uses. Most obviously, the Copyright Act provides that fair dealing for the purposes of criticism or review; and parody or satire, do not constitute an infringement of copyright.

However, not all uses that might be classed as transformative will be parody, satirical or critical. Sampling, mash-ups or remixes will not usually fall within the scope of these exceptions and such uses will constitute infringement when a substantial part of the work or other copyright subject matter is used.

In EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (the Kookaburra case), for example, EMI”s recordings of the Men at Work song “Down Under” were found to have infringed the copyright in the song “Kookaburra Sits in the Old Gum Tree”. The Kookaburra case confirmed existing law that, in order to establish infringement of copyright in a musical work, it must be shown that a substantial part of it has been copied. Determining what is substantial in this context depends on whether what is reproduced is a “substantial, vital and essential part of the original”.

Australian law may not be as clear in articulating how the notion of a “substantial part” will apply to the sampling of sound recordings. In particular, there are concerns that courts may follow approaches in the US, which suggest that any copying of a sound recording may amount to an infringement of copyright.

Professor Kathy Bowrey observed that, while the Australian Copyright Act arguably lends itself to a similar narrow interpretation, the High Court of Australia has suggested a narrow and legalistic approach would lead to the over-protection of subject-matter other than works—including sound recordings. The High Court, in considering the appropriate scope of copyright protection of a television broadcast, reaffirmed the importance of keeping separate the concepts of substantial part and fair dealing. This means that copying does not constitute an infringement, and the defences of fair dealing do not come into operation, unless a substantial part is copied.

Finally, some transformative uses may infringe an author”s moral rights under pt IX of the Copyright Act. For example, in Perez v Fernandez, the Federal Magistrates Court held that a Mash-Up involving only a few words mixed into a song was prejudicial to the artist”s moral right of integrity. Allowing new transformative uses of copyright materials may lead to more frequent assertion of moral rightsi. The debate over adding an exception to the law or a “standalone use” is extensive and the use of the “Moral Rights” assertion has to be consideredii.

Phoenix Blue Productions Pty Ltd has produced a Bible Movie App (“product”). The completed
App links to extensively re-edited footage/clips of over 80 hours in total length split into the 66 “Books” or “Chapters” and further cut into approximately 1,189 individual chapters to enhance educational use, research and learning English for those who English is a second language.

The product has used a variety of stock film footage, Creative commons clips, Public Domain Films and Films with an “unknown” origin the Movie Book App has transformed the original clips from “on-subject” stories to word-for-word depiction of the biblical text. In all there are over 1,000 source Movies that have been cut up into over 40,000 “clips” and spread throughout the product.

On some occasions these re-editing transformations utilize sources relevant to the relevant Chapter. For example the edit of Chapter 01 (Genesis) utilizes over 20 movies based on this book and theme. The end result however is distinctly different to both the narrative and the sequence of images of any one of the source Movies.

This is in keeping with a Greek understanding of the word parodeia is “song sung alongside another,” the product could be considered a critical comment on bible films that are not biblically accurate. This is a timely and topical discussion in light of the production of “Noah” by Aronofsky “the least biblical bible film ever made”.

This is becoming such an issue that some Christian groups are boycotting recent release of the “Exodus – Gods and Men” Movie. The producer could argue that the overwhelming majority of “biblical” films used have strayed (in varying degrees) from the original biblical narrative. There are very few examples of Movies that claim a “word-for-word” adherence. For example the Cecil B De Mille Ten Commandments Movie is a famous “bible” movie yet it is so far from using the bible as a script that is cannot claim to be biblically accurate, nor does it do so. The bible is a historical educational resource and a simple line-by-line examination of any “bible film” simply shows where they have deviated from the text. If it were Shakepeare it would not be so! There are literally scores of word-for-word accurate Shakeperian movies, the most notable example being Baz Luhrmann”s Romeo and Juliet script maintaining a strict adherence to the original Shakespearian script despite being set in contemporary Mexico City.

This Bible Movie App “comments on the originals” by way of a word-for-word adherence to the original Bible script. An ironic use of “parody” one definition, however the legal defense is overwhelmingly supportive of the “Transformative Use” position and the “creation of something new” as opposed to a comment on the „(literal) biblical inaccuracy of previous “bible” movies”.

The Supreme Court (in the famous parody case of Acuff Rose v. Campbell over 2 Live Crew”s version of Roy Orbison”s Pretty Woman) said it this way:-the heart of any parodist”s claim to quote from existing material, is the use of some elements of a prior author”s composition to create a new one that, at least in part, comments on that author”s works.. . . If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another”s work diminishes accordingly (if it does not vanish)”.

The Bible Movie App however, directly addresses the current expression of liberties being taken both today (and historically) in translating the bible from book to film. In using the word-for-word narrative the bible becomes the script and a narrator reads the bible “word-for-word” (while movie images play across the screen relating to the text being read). This form of visual book is a new and unique use that depicts the bible in a refreshingly new and innovative way opening up avenues for enjoyment by the visually impaired whilst also providing a resource to help contextualize meaning for those studying English as a second language.

Phoenix Blue Productions Pty Ltd is a registered Educational Institution therefore the completed Bible Movie App is presented as an English Language learning/teaching tool being translated into over 15 languages and allowing students from all over the world to learn English with the added assistance of movies to give the very necessary visual context.

The facility within the app to select to use movie, audio, text, captions (as viewing and/or listening options) assists in the facilitation of a greater understanding of the Bible with those who are hearing (or visually) impaired while providing a valuable educational tool. While the “App” context is not a legal defense the tools

available to select the combination of voice “+/-” text “+/-” video “+/-” subtitles “+/-” Audio translations provides a simple and effective management center for the delivery of the of the educational components. The argument that “the content creators may want to do that” is a mute point as the essential use is different. None of the original content producers will be able to offer their products as a word-for-word Bible Study/English Language educational tool. They could provide it as a XYZ

Bible movie study tool, but, as none are “word-for-word” they (the original content producers) would have to re-edit their films to fit this new model. If there were a case of a film that is “word-for-word” it would not be a “Bible” tool, more a singular “book-of” or “set of books”. At present there are many Bible Apps but none that provide a visual experience from Genesis to Revelation. The argument that a content producer may want to do this in the future is a moot point as the finances to create such a product in the “traditional” sense make any attempt at such a project nigh impossible.

A small sample of the more “biblically accurate” of those available in the list of bible films shows that in this sample, taken from a list of over 100 “Bible Movies” only 4 claim to be word-for-word accurate and a closer analysis would prove that even these contain omissions and edits. The point being that the concept of presenting the whole book of the bible in a word for word Movie has never been achieved, (or even attempted). The reason for this is simple. If a word-for-word product were to be produced and a budget was estimated from the chart below the minimum (for a TV series) would be $4,000,000 per episode (chapter) or $264,000,000. If however a movie studio on the level of Exodus, Gods and Kings were to produce the project it would cost $5+ Billion ($140,000,000 = 2 hours: $5,600,000,000). As the only publically released plan to attempt a faithful word-for-word production of the 4 gospels (Matthew, Mark, Luke, John) has been announced by the Lumo Project and the product that has the “closest” word-for-word depiction is Visual Bible International and their copyright status is difficult to ascertain as the company has gone into receivership.