Movie Copyright Cases Filmmakers Should Know: Part 2, Movie Fair Use Cases

In the previous iteration of this blog (Part 1), we presented several movie copyright cases addressing the issues of copyright infringement and copyrightability. In this post, we look at TV and movie fair use cases to learn about the nuances of copyright law’s fair use defense.

The Fair Use Exception

Fair use is a hot-button topic in copyright law that arises frequently in movie copyright infringement cases. When the elements of copyright infringement—actual copying and improper appropriation—are satisfied, an infringement defendant may still avoid liability if they can argue that the inclusion of copyrighted material constitutes fair use. There are four factors to the fair use analysis outlined in the Copyright Act, Title 17 United States Code, Section 107:

One fair use concept that can prove elusive or confusing for filmmakers is “transformative use” under the first fair use factor. Established by the Supreme Court in Campbell v. Acuff-Rose Music, the transformative use inquiry asks whether a copying work “merely ‘supersede[s] the objects’ of the original creation . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message. . . .” In Campbell, the question was whether a spoof of Roy Orbison’s song “Oh, Pretty Woman” was sufficiently transformative to tip the first fair use factor in favor of the parodist defendants.

Courts have struggled to appropriately apply the transformative use test in the decades since Campbell’s issuance, so the Supreme Court clarified the transformative use test in the recent case of Andy Warhol Foundation v. Goldsmith. Justice Sonia Sotomayor’s opinion explains that transformative use does not alone control the first factor, let alone the entire fair use analysis. Furthermore, what constitutes “new expression, meaning, or message” is an objective inquiry for courts to address, not a question of the subjective intent of a copier (or any individual critic). Finally, whether a use is transformative is directly connected to the other fair use factors, especially factors three and four. For the third factor, the less that is copied verbatim and the more alteration to what is taken, the more likely a finding of transformative use. And as for the fourth factor, a lack of transformative use means that a new work fulfills the same purpose as the original and thus that the new work will likely serve as a market substitute. To illustrate, consider the following movie fair use casesfrom the Ninth Circuit Court of Appeals:

• In Elvis Presley Enters., Inc. v. Passport Video, documentary filmmakers argued that their use of copyrighted video clips qualified as a fair use when they were sued for unauthorized inclusion of the clips in their documentary about musician Elvis Presley. The Court of Appeals upheld the district court’s finding that the first fair use factor weighed against Passport’s fair use defense because the documentary was of a commercial nature and the use of the clips was largely not transformative. The court did note that in some circumstances there was transformative use because the clips played “for only a few seconds and [were] used for reference purposes while a narrator talk[ed] over them or interviewees explain[ed] their context in Elvis’ career.” But in many other circumstances the documentary showed clips which went uninterrupted for 30–60 seconds and featured no additional commentary, thus evidencing a lack of transformative purpose and indicating that the clips were being used to simply rebroadcast their entertainment value that plaintiffs rightfully owned. Also, in relation to the fourth factor—the effect upon the potential market for the copyrighted works—the court affirmed the lower court’s opinion that this factor weighed against a fair use finding because the defendants’ use of the clips for entertainment purposes would affect plaintiffs’ abilities to license their clips of Elvis for their entertainment value.
• In SOFA Entm’t, Inc. v. Dodger Prods., Inc., makers of the musical “Jersey Boys” included within the theatrical performance a copyrighted clip from “The Ed Sullivan Show.” In this instance, the Court of Appeals agreed with the defendants’ fair use defense. Among the differences between this case and Elvis Presley Enters. was that the Ed Sullivan clip served a transformative purpose because it was used as a “biographical anchor” to mark a milestone in the careers of the Four Seasons. Additionally, under the third fair use factor, the court found that the Ed Sullivan clip was very short (lasting only seven seconds). Lastly, the fourth factor weighed in favor of fair use because the inclusion of the clip did not amount to a market substitute for “The Ed Sullivan Show”— the clip was very short and appeared only one time in a show that was not reproduced on video for easily repeatable viewing, so it did not cause market harm to the original.

The case of Ringgold v. Black Entertainment Television, Inc., mentioned in Part 1 of this blog, also illustrates the four fair use factors at play in the television industry. In Ringgold, the Second Circuit Court of Appeals found that BET was liable for copyright infringement due to the use of Ringgold’s copyrighted poster in an episode of the show “Roc.” The poster appeared on screen for less than 30 total seconds, never visible for more than five seconds at a time, and was largely out of focus and partially obstructed. Even so, the Second Circuit Court of Appeals rejected BET’s fair use defense.

The court held that the first and fourth fair use factors weighed against BET. Under the first factor, the court found that the purpose of BET’s use was identical to that of Ringgold in creating her poster: for decoration. It did not matter that the poster’s inclusion in the episode seemed to lack thematic significance and may have been arbitrary; there was no new expression, meaning, or message added to the work and the purpose of the use was the same as the original purpose, thus nothing transformative about the use. As for the fourth factor, similar to Elvis Presley Enters., the court noted that it would cause market harm to Ringgold if others like BET used a copyrighted work without permission when the copyright holder had a business of profiting by licensing her artwork.

The Ringgold court also pointed out the importance of considering section 107 as a whole. Specifically, courts should examine whether a defendant’s use falls under one of the “normally invoked” purposes of fair use enumerated in the statute: criticism, comment, news reporting, teaching, scholarship, and research. The court admitted that these examples are not an exhaustive list, but it maintained that “the illustrative nature of the categories should not be ignored,” and none of those categories applied to BET’s use of Ringgold’s copyrighted poster.

As with the cases described in Part 1 of this blog, these cases should serve as further evidence to filmmakers that it is often advisable to seek a license before including a copyrighted work in a film or documentary. If permission is denied and a copyrighted work is used in more than a de minimis amount (because de minimis uses are permissible), then the original work should be transformed with new expression, meaning, or message— and a filmmaker should use only the amount necessary to achieve the transformative use purpose. However, be careful since, after the Supreme Court’s decision in Goldsmith, the transformative use test bears significantly less weight on the fair use analysis.

To Be Continued

The fair use doctrine is intricate and depends on the specific facts of a case, but it is the most prevalent defense to copyright infringement. Familiarity with the concepts addressed in this blog installment on TV and movie fair use cases as well as Part 1’s blog on copyright infringement and copyrightability could prove very beneficial to film and TV professionals. The third and final installment of this blog series will present movie copyright cases touching on the issue of authorship.

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