Copyright Lawsuit May Reveal Whether Documentary Movie Was Real Or Faked
from the fair-use-comes-down-to-this dept
Remember the situation with David Letterman and Joaquin Phoenix arguing copyright on Letterman's show? While they were joking about it, the issue revolved around whether or not Phoenix's last movie was really a documentary or not. It uses the famous clip of Phoenix acting crazy on Letterman's show in the film, and the producers claimed that it was "fair use," since it was a documentary. However, once Phoenix admitted that the whole thing was faked, Letterman realized it wasn't actually fair use any more. Of course, they were mostly (we think) joking around, but a similar issue may have cropped up in another lawsuit.THREsq has the details of a lawsuit over the movie Catfish, a little indie documentary that supposedly shows the story of the filmmaker's brother getting involved in an online relationship, where the object of his desire later turns out to be someone entirely different than he thought it was. Apparently, when the film was shown, many people thought the fillmmakers must have setup the story, since it seemed unlikely to be real, but they insisted that it was an actual documentary and what is seen on camera was what actually happened.
Here's where it gets tricky, though. Apparently, one of the key parts of the movie is that the woman that this guy has met over the internet, emailed him some "songs" that she had recorded, and one of the ways he discovers that she's not who she says she is, is that he finds more information about the song on YouTube and realizes the woman who sent it to him did not actually write and record it. The song is actually All Downhill From Here, by Amy Kuney, who is signed to Spin Move Records. Apparently Spin Move and Kuney were happy to be featured in the movie at first -- with Spin Move doing a blog post touting how Kuney's song played a central role in the movie... but then the lawyers showed up and said, "hey, shouldn't we be getting paid...?" So the label removed the post and sued.
The filmmakers response, of course, is that it's a documentary, and it accurately portrays what happened, so it's fair use. So, now, they not only have marketing reasons to claim it's a documentary, but legal reasons as well. The lawyers for Spin Move, on the other hand, have every reason to seek to prove that the movie was planned, rather than just a documentary, because if that's the case, there may not be a fair use defense. Of course, the other possibility is that the filmmakers figure out a way to settle (i.e., pay up) before the case goes anywhere, and they don't have to swear under oath whether or not the movie is real...
Of course, when you think about it, this kind of highlights another rather silly aspect of copyright. Whether or not the use of the song is legal or not depends entirely on whether or not the film is a documentary or not. Note that nothing actually changes about the movie. When a copyright system punishes people based on how people classify a movie, that seems like the system isn't working.
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Filed Under: copyright, documentary, fair use
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Does not matter if its a movie or a Doco..
Let's look at that..
1. The purpose and character of the use, including whether such use is of a commercial nature or for a non-profit educational purpose
There are another 3 points, but it fails this one, it does not matter at all if it is a Documentary of a movie, if it of a commercial nature it fails the fair use test.
Plus, the movie, is not trying to educate you about that song, or provide commentry on that song, so how can you say that movie is "for a non-profit educational purpose". ?
So what aspect of the movie, with a plot based on a specific idea, and a song (why it could not be ANY song?).
FAIR USE - specified by section 17 U.S.C 106
critism
comment
news
reporting
teaching
scholarship
research
This movie does none of this, and it does not matter anyway, because the movie is of a commercial nature.
Commercial nature is there, so that if you are going to make money out of using someone else's creations, then you should rightfully pay for what you use..
(that is the basic copyright tenent)..
The writer of the song is not critial to the plot, just the fact that the person who claimed to write it did not..
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Played a critical role, be payed for the role you played.
If that is true, and I know it was from Spin Move, but if the song played a central role, then of course, it should be paid for its role it played.
Not that it is true that the plot is critical to that particular song, it could have been any song, but the movie maker wants to use that one, and if that is the case, there is nothing wrong with him paying for that copyright.
But if the specific song, by that specific artist is critical to the movie it cannot be much of a movie..
And even worse as a documentary...
not that any of that matters, regardless of movie or doco, if it is commercail in nature, it is not fair use.
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Re: Does not matter if its a movie or a Doco..
(that is the basic copyright tenent)..
As per usual, Darryl, you are wrong. There are plenty of situations where commercial use is deemed fair use.
http://www.techdirt.com/articles/20090810/1913245833.shtml
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Re: Re: Does not matter if its a movie or a Doco..
Yea,, like what ???
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commercial fair use?
Blog sites that quote news on other sites (and add comment) and link to it? Like techdirt and google?
News items quoting a line from a book?
i am sure there are many but i think these work?
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Real or faked?
If it is $100 million or more and completed in less than three years, then it is a real movie, otherwise, it is a documentary. :>)
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Re: Re: Re: Does not matter if its a movie or a Doco..
http://www.techdirt.com/articles/20090810/1913245833.shtml
Here, I reposted it for you.
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Re: Re: Re: Re: Does not matter if its a movie or a Doco..
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Hold on a moment...
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Its a documentary
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yep
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Re: Its a documentary
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Re: Does not matter if its a movie or a Doco..
Section 107 clearly denotes that the commercial nature of the work is one of four "factors to be considered."
So is the simple fact of the film being a commercial venture enough to make it fair use? Well if so, then we have a problem with the rest of the statute. In fact you list the problem verbiage in your post:
critism [sic]
comment
news
reporting
teaching
scholarship
research
The first four, criticism, comment, news, and reporting are generally done for commercial purposes far more often than not. Teaching and research are also often done for commercial purposes. Really only scholarship falls into the category of that which probably can't be performed for commercial purposes.
That said, lets consider news, reporting, and commentary because those most closely overlap (and I would say include the purpose of a documentary). By your reasoning, really only NPR and PBS type broadcasts could ever claim fair use. The law was clearly not intended to exclude your local paper and local news affiliate from claiming fair use.
But again, let's not throw out commercial use from this discussion. Rather, let's keep it, but as one of many factors to consider.
So the next question, the next factor before us is factor (2) the nature of the copyrighted work. Note carefully that this is NOT talking about the nature of the work in which the copying appears, but the nature of the original work. This factor has always seemed rather specious to me, but I digress.
Here, factor 2 indicates that somehow the nature of the original work affects its relationship to the work in which it has been reused, which in turn is a factor of whether or not it's really fair use. So, for example, a newspaper printed a movie review and included with the review an unlicensed DVD of part or all of the film, well, the nature of the work may (I say 'may' because the same is commonly considered legitimate in an internet article and again, it's just one fact) be seen as easily distinct from the review and superfluous to any function of fair use.
However, if a song is playing in the background of an on the spot interview in a TV news story, well then the nature of the audio is such that it's inseparable from the whole without altering the raw quality of the news story. The same would be true of a longer form, news magazine show with raw, factual video edited into a longer news story. The same would also be true of the next logical extension, a documentary film purposed to be a long form documentation of raw factual footage framed into a journalistic story.
However, if the film was a mock-umentary, then not only is the journalistic purpose blown, but factor 2 is blown too, because the background audio can be kept out of the film by simply reshooting the theatrically pretended "documented scene" without harming the quality and without losing the raw factual nature of footage that wasn't so in the first place. Does that make sense?
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Still not a doco, as if that even matters.. doco's are not exempt from copyright.
but it does not matter anyway, being a doco, does not automatically give you fair right use of whatever you want.
Especially if the doco does not directly address that content as part of the factual documentry.
And it is not fair use if you use all the content completly.
So if you were creating a documentary on writing, that would give you permission to include the entire text of a Harry Potter book.
This movie is not even that, it is not a documentary about songs, music or artists, so there is no scholarship involved..
The song most probably is played completely, so it fails the 'amount of content used'.
And its still of a commercial nature, the law says nothing about differentiating between movies and documentries.
Try to make a doco about John Lennon, and try to include all his songs, and see what happens.
This 'its a doco, so its ok', is a joke, I hope he is not willing to test that in a court..
That would be a stupid move, but it would be interesting at least to confirm what is going to happen..
Why is he trying to define it as a documentary anyway ?
How, is it in anyway considered a doco ? what educational value is it going to impart on its viewers, and what is the documentry about ?
is it a doco about some guy who meets a lier on the net ? or a doco about some guy's brother, does it matter if it is based in fact or fiction? and if so why ?
I have never seen a 'general purpose' documentary, they always are a doco ON SOMETHING.
It might be a documentry on the Moon, or on mammals, or birds or on politics, or on history etc.. get the idea ?
So please tell us what this "documentry" is on, what is the subject of the doco?
think about the acadamy award announcment "there is the winner of the best doco award for the doco on ........"
Fill in the rest yourself if you can..
Is the movie JFK a doco ?
People try to make the stupidest statements and claims, its lucky we have courts and people with brains who can see this rubbish for what it is..
a poor excuse of taking and using something you are not legally allowed to do. and profiting from it. or with the intension to profit from it...
Is it really THAT hard to understand ?
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Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
It's not a documentary because of the topical matter, but because of the method and presentation. Unlike the Shindler's List, Pearl Harbor, and JFK films, a documentary is a filming of happenings not a filming of theater. It's not a recording of a retelling of history, it's a recording of the history as it happens.
Not only would a documentary be damaged by altering to remove copyrighted material, copyright itself by statute, does not extend into the documentarian's work.
Further, to rephrase what James Boyle explains in his book, the documentarian's defense isn't, "Oh I accidentally recorded your copyrighted work, I'm sorry I stole from you, but I need it for fair use, I'm so glad the law gives me this exception." Rather, according to law, the documentarian's defense is, "Gosh I'm sorry it bugs you, but your rights don't really extend over into my film because the law never intended to give you that much control over your work."
Fair use in documentary film is well established and likewise has its own limits. A great resource can be found here: http://www.centerforsocialmedia.org/fair-use/related-materials/teaching-materials/examples-successfu l-fair-use-documentary-film
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Re: Does not matter if its a movie or a Doco..
The premise that one is definitely fair use and the other isn't, in either case, is flawed.
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Mike, do you have any support for that statement? Obviously, I have not read every fair use opinion ever written, but I would be very surprised to see any court ever reduce the issue to something to simple.
The very nature of multi-factor balancing tests, like the fair use test, is antithetical to such brightline rules.
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Re: Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
What part of the statute says that?
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Re: Re: Does not matter if its a movie or a Doco..
I don't personally like that distinction. I think entertainment should very nearly always be considered to have education as part of its purpose. The very word entertain, long before it meant to sit on your butt and passively consume media, originally meant to work over, to mull over, to turn something over in your mind. We should not let go of that meaning so easily.
However as for how the law works, it's relatively (any line can be fuzzed) straightforward.
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Re: Re: Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
http://www.copyright.gov/title17/92chap1.html#107
Fair use is one of many things that are listed NOT as mitigating exceptions to the absolute power of copyright but rather "Limitations to exclusive rights," that are granted by the government. That is, fair use forms one of the hard boundaries of what is and isn't granted in a copyright. You pass a certain point, and "Here there be public domain."
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Re: Re: Re: Does not matter if its a movie or a Doco..
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Re:
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Re: Re: Re: Does not matter if its a movie or a Doco..
This is false. I'm wondering what you're relying on.
Courts addressing a fair use argument address the four statutorily prescribed factors and balance them, regardless of what "category" any work is alleged to fall under.
When doing so, they usually explicitly state that no one factor is dispositive, although they also state that the first (nature and character of the use) and fourth factors (effect on the potential market for the copied work) are given great weight.
"However as for how the law works, it's relatively (any line can be fuzzed) straightforward."
Lol! Fair use is one of the *least* straightforward legal doctrines in the law!
What are you relying on for these assertions?
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Re: Re: Re: Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
But that says nothing about "the documentarian's work."
There is no categorical fair use exception/defense for "documentaries."
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Re: Re:
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Re: Re: Re: Re: Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
Reed v. Freebird Film Productions, Inc., 664 F.Supp.2d 840 (N.D.Ohio 2009).
If copyright simply "does not extend into the documentarian's work" as some sort of categorical exception, then the case could have been resolved on summary judgment.
But that's not the way it works.
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Re: Re: Re: Re: Does not matter if its a movie or a Doco..
I'm referring to USC 107. Yes, 107 has a four factor test to determine if a fair use claim applies, but that claim under 107 only exists to be tested if it's even remotely plausible that the purpose of the use falls into one or more of the categories of the first part of 107, "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," if so then the four factors are weighed and it's determined whether this really is public territory.
Now I suppose I must apologize because I guess I didn't mean to make it quite as black and white as you've taken me to mean. I recognize that particulars are particulars and there are some intermediary places that might seem to fall under the "purposes such as," which suggests that there may be similar, unnamed purposes that follow the same line of thinking, which would also be considered fair use.
I really thought I hinted well enough that I understood that ("any line can be fuzzed") and was only simplifying here because when you're looking at documentary vs "haha not really" there's absolutely no need to split hairs.
Sorry for being overly contextual, maybe next time we meet in the middle? I don't know.
Correction: However, as for how this law works in this case, it's relatively straightforward.
Better?
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Re: Re: Re: Re: Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
Let's put it this way and see where we get: Yes, there ARE categorical exceptions, specifically purposes for which there are boundaries that copyright doesn't extend into, i.e. limits of the exclusive rights granted by statute.
Whether these protected purposes of use, these categories, exist or not is not really in question. 107 expressly says so and lists several and sort of vaguely leaves it open for the possibility of others. I'm saying generally a straight documentary falls under one or even more of the expressed purposes, namely news reporting, often comment, and perhaps criticism.
The question then isn't whether certain uses are protected, but WHERE in the intermediary space are the boundaries to be drawn, and THAT is the purpose of the four factor test. The results are different every time because unlike a property line between plots, the purposes of uses will vary some with every instance of use. So, although I make it sound like a hard line, yeah in reality there is this sort of flux space that depends on all these factors. So each use has to undergo the test to see where does it really fall, this side or that side. But once the line is drawn, there is no copyright claim on the other side of it, period.
So when I say, doesn't extend into the documentarian's work, what I mean is there's a boundary theoretically supposed by and functionally determined by the four factor test within which the documentarian (if he or she avoids the fringes) should easily be able to say, "Hey I'm way over here on this side, kindly let me be." Certainly, the genre has artists who push the envelope and fuzz the lines. Thank God for them, because they often make the most interesting work.
In this case, however, I think it's pretty simple. EITHER the film and the scene in question were an unpretended recording of actual events or they were a pretense of theater.
For my part, I was really replying to Darryl, who doesn't even seem to get what a documentary is, and his overarching claim throughout this page that it doesn't matter whether the use was documentary or not. It DOES matter, and on its face in this case, it's pretty simple. If it's a real documentary, there's not much fudging here. It's almost certainly fair use. If it's pretend, it's almost certainly not.
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Re: Re: Re:
"the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."
That which is not an infringement is defined both by "fair use" and "for the purpose of...." When simplified, it reads, "the fair use of a copyrighted work for [these kinds of purposes] is not infringement." Not only is there no suggestion of an OR operand there, there's no conjunction at all. AND the wording of the four factor test clearly sets the test forward not to determine of which purposes are granted easement, but WHAT makes a use falling under one of those purposes a fair use.
I certainly grant that there are "such as" purposes not expressed here which may be included.
I also want to be careful to note that it is the purpose of the USE and not that of the encompassing work which I am referring to. Within a purely fictional theatrical work, there may be a short bit of parody which would likely be a fair use based on its being purposed in criticism or comment, given that the use passes the four factor test.
I can see why you may be reading my comments (and Mike's too) as suggesting that the entire genre is exempt. I didn't mean that much. I just meant that in the case of Catfish, when there's a legitimate question of whether it's really a documentary, then it's probably pretty simple. If it's for really reals, then it's really a fair use. If it's not, then I'm betting on a payout.
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Re: Re: Re: Re: Re: Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
But just reading your reply, I think you're taking me to mean something I don't. I don't mean that fair use extends beyond the boundaries of the four factor test just because the genre wherein the use is found generally falls under a USC 107 use purpose. I mean that, given the limits of fair use, if a documentary is a documentary, ANDIF the use in question is not an exception to that purpose, then within the limits of fair use, the copyright simply isn't - that's all.
Should I have stressed the limits of fair use on this? I mean nobody here is suggesting a documentary of "My film class's trip to watch Spiderman the movie" wherein the entire movie is recorded and replayed in sequence as part of the film.
Is the whole song played in Catfish? Sure that's stretching the fair use claim, but there IS still a fair use claim there if it's a documentary. I'm happy to concede that the strength of that claim would be weighed by 107 (1-4). All I've been saying is that it makes a huge, basically black and white difference if it's not real documentary.
I would probably also argue, though, that if your Freebird case legitimately fails the fair use test, then inasmuch as it does, it (the use) is become something else, either different or more than just plain documentary regardless of what the parties agreed it to be. Again, I'm limited by my research tools, stupid me.
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Re: Re: Re: Re: Re: Does not matter if its a movie or a Doco..
First, as I posted below, I have never seen any case that follows the approach you are suggesting (i.e., first determine whether a work falls into one of the statutorily recognized categories, THEN apply the four-factor test). That is just not how it's done.
Second, I think, in general, fair use is not straightforward. But also, as applied to this case, there is no straightforward application of "if it's a documentary, it's fair use; if it's not, it's not," which is what you seemed to be suggesting.
The statutory language in 14 USC 107 was adopted after over 100 years of judicial interpretation of "fair use," which courts still rely on. Looking solely to the statute, as opposed to actual court decisions, for interpreting the contours of fair use is not a very good way to gain an understanding of how it is actually applied.
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Re: Re: Re: Re: Re: Re: Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
Sorry, but I don't think I understand your meaning.
Also, I don't disagree with that there may be a legitimate claim to fair use in this case.
However, I do disagree with Mikes claim, which I took you to be saying as well, that the categorization of "documentary" or "not documentary" was determinative of the fair use question.
I guess if you *define* "documentary" as something that fits into fair use, then the categorization is determinative, but that seems to be the tail wagging the dog to me.
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That is how I read the comments (e.g., "When a copyright system punishes people based on how people classify a movie, that seems like the system isn't working."), and I think my main purpose in this thread was to dispel that notion.
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Re: Re: Re: Re: Re: Re: Re: Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.
Directly documenting via video/film => some kind of educational/reporting/commentary/criticism per USC 107 (though obviously subject to the limits of fair use). Surely we can agree on this.
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Re: Re: Re: Re: Re: Re: Does not matter if its a movie or a Doco..
Are you suggesting that there would still be a fair use claim if it were proven that they planned ahead of time to use this song as the central piece of a scripted scene in a mockumentary? Because that's the alternative we're talking about here. Dude, even Dave Letterman gets the difference.
Yes, factor 1 is the most determinant factor. If you can't show that it's a kind of use worthy of a fair use claim, then how small a chunk it was, and what kind of song it was and the effect on it's market won't even make it to the table. They're factors, and if one your first factor is zero, you can skip the rest of the multiplication, the answer is zero.
Let's look at Joaquin Phoenix's only using a clip from Letterman's broadcast:
In JP's case, it's not so determinate whether or not it's a documentary. I think JP would have a more legit claim in his case, because his mockumentary is actually making a comedic, critical comment on the original Letterman broadcast. So then, with the first half of factor one checked off, he's still got the commercial vs non consideration (his being commercial) to be weighed and the other three factors as well, but he's at least got a claim. However, with Catfish, no doco means no claim-o. If you don't have a claim, there's nothing to weigh. That's really all I ever meant.
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Re:
I just so happens that with Catfish, the purpose of the use seems clearly dictated by the nature of the film as a whole. If they were just staging fiction on film, they probably don't have a fair use claim, the remaining factors don't even get off the bench to play.
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Re: Re: Re:
I meant to argue a certain general preeminence of the first factor in determining fair use, and to point out its obvious weight in this case. Although I still hold that the first factor is, has been, and should be generally given more weight, I have learned that there are reasonable exceptions to this as well.
Sorry for suggesting you were just arguing semantics, I see your point now, thanks for shedding some light here.
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