David Letterman And Joaquin Phoenix Discuss Fair Use As Letterman Threatens To Sue

from the all-on-live-TV dept

Fri, Sep 24th 2010 8:18am — Mike Masnick

You probably recall the infamous Joaquin Phoenix appearance on David Leterman from last year, where Phoenix acted somewhat crazy:

As many people suspected at the time, it was all a hoax. It was known at the time that Phoenix and Casey Affleck were working on a "documentary" about Phoenix, and now that the movie came out to pretty dreadful reviews and even more dismal box office results, Affleck has finally come out and admitted the whole thing was a hoax, in what's likely an attempt to garner some new press attention for the clear flop, which Affleck claims is close to bankrupting him. Of course, they may have to take some of that $259,290 the movie has supposedly earned and hand it over to David Letterman.

You see, earlier this week, Letterman had Phoenix back on to discuss the hoax, and where things got interesting was where Letterman began discussing fair use and publicity rights and demanded money from Phoenix. Letterman points out that Affleck's lawyers had initially said that they could use Letterman in their movie because, as a documentary, it was "fair use." But... since it's no longer a documentary, Letterman suggested his normal fees should apply. While it was all done in a joking fashion, as THResq notes in the link above, the fact that Letterman actually quotes "fair use," and such suggests that perhaps he really has been discussing this with the lawyers.

Letterman: OK, so now I want some money...Nobody ever asked us if Dave was going to be in film. You have to license this out. Give us the license fee. And that was the last we heard. Then we went to the lawyers and the lawyers said, "Yeah, you can. If you want, you can probably sue these people." Then your attorney said, "No, it's fair use because it's a documentary." Well hoo ha, guess what? It's no documentary. It was a theatrical ruse, right?

Phoenix: OK, yes. So you are going to sue us?

Letterman: And so I'm in it. And as you mentioned here, at a pivotal moment of the film, where "Oh my god what has happened and Letterman crushes me. Oh, my life is over, my career. What have I done? What have I done??" Now you owe me a million bucks.

Phoenix (mumbles): A million bucks.

Letterman: All the promotion you got from being on here that night in your Dr. Drew 'Oh My God,' all of that is worth something. That's free publicity. So we want something for that. And my talent fee. You know, it's not my first rodeo. I'd like a little taste of this as well. So you and Casey get together with your little buddy and come up with a million. That's all I'm asking.

Phoenix: OK, we'll work it out. But, um, can we talk about it privately?

And the video, which should start at the key point in the discussion:

I doubt there will be any real lawsuit, but it sure would make for an exciting sequel to the movie, huh?

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Filed Under: copyright, david letterman, fair use, joaquin phoenix

21 Comments

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Kevin (profile), 24 Sep 2010 @ 8:26am

I think it was a shtick
I do not think that Letterman is actually going to sue. More over I think that Letterman was annoyed at being used as a pawn in his mock-umentary, and seeing as he had the opening he decided to make Joaquin sweat a little. Given the situation I'm pretty sure that I would have done the same thing.
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- Ben, 24 Sep 2010 @ 12:25pm
  
  Re: I think it was a shtick
  If I had anything (and if it was me), I would pile it up (money, etc) in front of his driveway and burn it before I would let some ganef momser steal from me!
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  - Dave, 24 Sep 2010 @ 1:25pm
    
    Re: Re: I think it was a shtick
    In front of Letterman? I think that is a little harsh. He was having some deserved fun with him. I think they deserved it after the prank, and they did take advantage of him & make him look a fool in the film.
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- Anonymous Coward, 25 Sep 2010 @ 5:23am
  
  Re: I think it was a shtick
  i think it was all scripted, Letterman was never "used", he knew all along
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wallow-T, 24 Sep 2010 @ 8:31am

Curiously: there is a great Letterman clip in the theatrical release of the documentary "Grizzly Man," where Letterman asks Timothy Treadwell, "So are we going to read in the news someday that you've been eaten by bears?" (Which, of course, is what happens in the movie, which is an outstanding work.)

I have read that the Letterman clip is not in the DVD release. I've never seen a good reason for the removal of the clip.
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Anonymous Coward, 24 Sep 2010 @ 8:43am

Letterman, anything that sticks it to that perverted sicko, I am all far, and it it warps the law against the likes of him so much the better.
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- Andrew (profile), 24 Sep 2010 @ 9:06am
  
  Re:
  Cheating on your wife with an employee makes someone a "perverted sicko?" What hyperbolic terms do you reserve for people who molest children, then?
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  - :Lobo Santo (profile), 24 Sep 2010 @ 9:16am
    
    Re: Re: Hyperbole
    Perhaps:
    CEO Raporist Pirate Bureaucratic Banker
    
    The most vile (according to certain groups) of all, and all grouped together! Mwa-hahahahahahA!!
    
    ; P
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stderr, 24 Sep 2010 @ 9:26am

Do not cry for Dave
Dave's had a pretty long carreer, and paraphrasing his own cliched words, it's not his first rodeo. From the start, it was obviously a hoax. No successful actor will even change the part in their hair without consulting their agent and having a focus group debate the pros & cons as it pertains to their "brand."

It's Dave's hoax. The movie's a failed product, having not earned even $300K at the box office. He wants how much? Dave's a smart guy, and surely knows the first rule of tort law: Don't sue poor people. Ergo, it's a hoax, and if anything, he's making himself look like the jerk he alluded to being made to look like in the film. Why? Perhaps he's helping Joaquin and Casey out, for a fee of course.

I think it's us as consumers who should feel like the butt end of the joke. After all, they are attempting to manipluate us.
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- Anonymous Coward, 24 Sep 2010 @ 9:51am
  
  Re: Do not cry for Dave
  "I think it's us as consumers who should feel like the butt end of the joke. After all, they are attempting to manipluate us."
  
  Yep. This. Stop watching this tripe. Stop supporting these million dollar actors and producers. They are old media, and not worth your time.
  
  I can recall the original clip and closing the browser tab about 3 minutes in. It was obviously a rude, and not worth my time, and that kind of crap turns me off to Letterman interviews, period.
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jupiterkansas (profile), 24 Sep 2010 @ 10:31am

Forget whether it was a good hoax or not or whether people are interested in seeing the film. It's yet another murky situation that copyright law isn't equipped to deal with.

If Letterman didn't know it was a hoax and agrees to appear in a documentary, then it actually is a documentary from his point of view even if Phoenix is pretending. Just like on Candid Camera - just because there's an actor involved doesn't make it any less real to the people observing. When the Yes Men perform their stunts and film it - is it fiction or truth? A documentary is just a document of something that happened in the real world, whether something fictional is interacting with the real world or not.

But basically, things fall apart when there aren't nice, clean-cut lines between real and fantasy, esp. when people aren't sure about the fantasy.
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Anonymous Coward, 24 Sep 2010 @ 10:41am

Letterman's no stranger to IP issues:

"...But in 1993, Letterman made his own big announcement: he was leaving NBC for a lucrative contract with CBS to star in the "Late Show with David Letterman" (1993)...NBC claimed that many of Letterman's gimmicks and jokes, including throwing the pencil at the camera, the Top Ten List, and Larry "Bud" Melman, among many others, were NBC's "intellectual property." NBC lost, but Larry "Bud" Melman would now be called by his real name, Calvert DeForest, on the CBS show."

From http://www.imdb.com/name/nm0001468/bio

Twas the first time I'd ever heard of something called 'intellectual property'.
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Bacon, 24 Sep 2010 @ 12:01pm

Same old Kansas City Shuffle. Letterman is helping out some friends. Maybe this is just a whirlpool of hoaxes and BS? Hollywood works the same way as any government. Think about it, the more Letterman beefs it up on his show the more people might actually take a look at Afflecks flop.
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RobShaver (profile), 24 Sep 2010 @ 12:08pm

Letterman asked, "Did I come off as a jerk?"
Well of course he did ... he acts like a jerk every night he's on. (I stopped watching him years ago. Leno's not much better either.) But all the celebrities that come on his show know this. Some cope with it better than others. Letterman is not a good sport about being sent up either. I'm sure he will sue. That's right up his alley, I think.
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Dave, 24 Sep 2010 @ 12:14pm

Listen to the end
Come on, he was joking and I'm pretty sure everyone knows. Have doubts, go to the very end and listen to him say "Stop it, he's a good kid". He was just having some (deserved) fun making Joaquin sweat.
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- Lynda, 24 Sep 2010 @ 4:41pm
  
  Re: Listen to the end
  Joaquin is so cute when he sweats. Off topic. Do you think its an oxymoran, contradiction that Phoenix chain smokes and is a vegan. Okay he's far from the only person who is walking contradiction.
  Re: Letterman suing. I think there's no case. Its not like the movie made much money. IE, very few people saw it. Now OTOH if it was a hit and made huge sums of cash then that could be a whole other matter. Just my opinion for what its worth.
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Tony E (profile), 24 Sep 2010 @ 9:50pm

Is this article a hoax?
I kind of feel like this article and others covering this story are trying to make news where there is none. There was clearly a bunch of joking around going on. Letterman laughs and says "he's a good kid" at the end of the clip as is fades out.

No, the mention of fair use "and such" doesn't really mean he was seriously pursuing a lawsuit at any point. It seems like Dave was just getting him back and intentionally trying to make him squirm. I don't really even feel like Phoenix's squirming was very genuine.
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B's Opinion Only (profile), 25 Sep 2010 @ 10:18am

People may think there is 'fair use' in documentary, but good luck getting distribution, foreign sales, and broadcasters without iron-clad contracts and releases from everyone who appears in the film!
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Brian Newman, 27 Sep 2010 @ 5:33pm

fair use
Here's some ongoing dialogue about this - love your continued opinions on this
http://springboardmedia.blogspot.com/2010/09/more-on-fair-use-and-letterman.html
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zach brown, 26 Jul 2011 @ 4:18pm

sue
it would be dumb to think letterman would actually sue. he gets 32 or 23 million a year so he is not going actually sue cause i mean this movie made jack. its gonna be a cult classic or something but dave is not going sue. if he was going to sue he would not even invite him to go on the show. i think this was one movie where dave actually wanted people to go watch the movie. he might come out as a smart ass but dave is a generous and kind guy and he is a comedian after all so he knows when to laugh at himself as well
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Phoenix criminal law attorney, 27 Jan 2012 @ 11:29pm

Everybody gets publicity here and the movie did not really do well in terms of profit, just above 300k.
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