Letterman Clip: Not Fair Use Parody...Or Is It?

I've been having a terrific online banter with Brian Newman regarding the use of a David Letterman clip in a recent film.  Brian's last observation was extremely astute, and got me thinking.  The essential issue is whether the use of that clip constitutes a Fair Use under Section 107 of the Copyright Act and relevant case law.

In making his most recent argument, Brian relies pretty heavily on the Campbell case, which is the leading Supreme Court case on parody as a form of Fair Use.  I think this case both hurts and helps Brian's position.

On the negative side, Campbell pretty clearly follows the traditional view that in order to constitute a Fair Use, the new work must be a parody of the original material itself.  A parody is defined as a distorted imitation of the original work.   In other words, you can't copy one person's protected work in order to make fun of something else.  That's the traditional view.  In this case, the Phoenix/Affleck film is not a distorted imitation of Letterman's show, and so technically does not appear to be a parody that would fall within the Fair Use exception.

On the other side, the Campbell case places a lot of emphasis on the "transformative" nature of the new creation.  Brian is correct that little emphasis is placed on whether the new work is produced as a commercial venture.  (While this is technically a factor to be considered, it seems to be the least important of the four factors referenced in Section 107.)  What is more important is whether the new work is utilizing the older work for purposes of adding something truly fresh to the cultural landscape.

In this case, while the Phoenix/Affleck film does not directly parody Letterman, I think it does aggressively poke fun at the public's appetite for "juicy" stories about celebrities.  Letterman is clearly right at the center of that topic.  Being on Letterman (or Leno or Kimmel or Fallon or Ferguson, etc.) is a strong indicator of public interest in a person or topic.  It is a cultural marker.  I think it could be argued that the use of the Letterman clip in the context of the film's comment on public gullibility made the clip a parody of itself.  That context placed the clip in a totally different light, and that is a very real type of distortion.

Going further in my quest to challenge Mr. Newman's conclusions, I took a quick look at a number of Fair Use cases from the past couple decades to get a broader feel for the way courts rule on the issue.  My quick unscientific research seemed to indicate that courts look most closely at whether the new work is causing economic damage to the value of the older work (the fourth consideration specifically referenced in Section 107).

I don't think a court would find the Phoenix/Affleck film to be a real threat to the value of or market for that episode of the Letterman show.  In fact, I would argue that the promotional value of the inclusion of that clip probably exceeds any loss of revenue that may have resulted.

So, my bottom line at this point is that I think a court could go either way on the issue, but from a philosophical standpoint, a finding of Fair Use probably would be the better and more appropriate result.  Mr. Newman, I believe you have won me over.

As an aside, a couple other interesting topics arose in my review of the relevant materials.  First, Tom Quinn raises a great point in his comment on Brian's blog -- has the definition of "documentary" changed, and if it has, why and how?

Second, Letterman seemed to raise the issue of whether the use of his name and likeness in a context that added to the content of the film warranted separate compensation.   This is a different issue from copyright infringement.  This goes more to whether he became an unknowing collaborator or endorser of the film.  Another very interesting question which we'll save for another day.

Mockumentaries And Fair Use: Do Jaoquin & Casey Owe Dave Money?

At the suggestion of my online friend and fellow film pro, Sheri Candler, I read this very interesting blog post from Brian Newman (NY media consultant and immediate past CEO of Tribeca).  Brian's comments are very well thought out but, in my opinion, incorrect.  Of course, there is nothing better than a well-reasoned disagreement, so here goes.

The basic topic centers on a comment from Dave Letterman that Jaoquin Phoenix and Casey Affleck owe him money for using a clip from his show in their mockumentary film, I'm Still Here. In case you live under a rock and you are unaware of the film, it is a supposed documentary on Jaoquin's abandonment of acting in favor of a career as a rap artist.  Jaoquin and Casey (who directed the film) both now acknowledge that the career switch was a hoax, played out for purposes of making the film and amusing the public.

As a part of the hoax, Jaoquin appeared on Letterman's show as his "character" and a clip of that appearance is included as a part of the film.  In a follow up appearance by Jaoquin on Dave's show, a discussion ensued whether money was owed to Dave for the use of that clip in the film.

So, the legal question is whether the use of the Letterman clip constitutes "Fair Use" for purposes of copyright law (which would mean that no compensation is owed to Dave or his company, Worldwide Pants).  Brian Newman says that it is indeed a Fair Use; I disagree.

Without going all legal on you, the primary purpose of Fair Use is to allow journalists and educators to use small portions of copyrighted material in order to inform and educate the public.  That is why the law allows such (primarily non-commercial) uses to be undertaken without compensation to the copyright holder.

In this case, the primary purpose of this film is not to inform or educate the public.  It is a spoof documentary, in much the same way that Borat was a spoof.  It was done for amusement and commercial gain.  Therefore, any use of copyrighted material within the film would be in furtherance of those purposes.  That is inconsistent with the principles which underlie Fair Use.

The bottom line from my viewpoint is this:  Just like this film might appear to be a documentary, the use of the Letterman clip might appear to be Fair Use.  However, in both cases, the appearance is deceiving and both conclusions would be incorrect.

We Spend Half Our Lives Staring At Screens!

Briefly, take a look at this extremely important article which has emerged from the conference being presented this week by The Wrap.  The article makes many great points.

The main thrust is a summary of research showing a vast expansion in the amount of time people are spending interacting with electronic media.  No surprises here, but the numbers are very interesting to see.

Also, it goes deeper to discuss how media is now being used and some of the factors that have yet to have their full impact felt.  It points out that the line between media use and communication has completely blurred, if not disappeared.

Finally, it foreshadows the  impact of personal display devices such as the iPad.  I can't overemphasize how important I think this new class of devices will become.  It is the tipping point in digital media ultimately coming to dominate the entertainment business.

Take a look at the article.  It is really worth the read.

"The Resistance" - Starz Tries A New Release Strategy For The Digital Age

Starz Media is blazing a bit of a new trail with its pending release of the sci-fi thriller, The Resistance.  I think their strategy on this release is an excellent vision for combining digital and traditional media platforms.  (Another really good article on the program and strategy is here.)  However, I'm not sure their particular approach is the best for maximizing revenues.

The program is essentially a one-hour piece (actually a little shorter) from Sam Raimi's Ghost House Pictures.  The Starz strategy is to initially release the entire program in a single showing on SyFy (including 9 minutes of extra footage that is not a part of the digital release).  Then, they will carve it into 5-minutes pieces available on Hulu (through an ad-based model) and for purchase on iTunes, Amazon and other platforms.

I applaud the cross-over use of media.  I think it is absolutely critical to have digital media be an integral part of every media strategy.  Most distributors of content now include social media promotion and online advertising as a part of their release strategy.  However, the real cutting edge is to utilize digital platforms as a part of the actual distribution scheme, as Starz is doing in this case.  The question is, "What is the best way to do this, from a business standpoint?"

I spend a lot of time advising my clients on these types of strategic issues.  My personal view is that it is important to capitalize on the primary strength of digital media as a  low-stress, efficient content delivery system.  This is a crucial part of the mechanism for building a buzz about your programming. (Of course, the "buzz" part still comes mostly from promotional efforts - access by itself does not create a buzz.)

I also believe that digital media will become a substantial source of revenue (especially as mobile media devices become more ubiquitous), but that's not the case today.  So, the production and distribution of The Resistance with an eye towards digital media platforms is right on target, but the value of the broadcast platform shouldn't be sacrificed in the process.

If it were my choice, I don't think I would show the entire program on SyFy prior to the digital release.  Instead, my strategy would be to release some of the content online, build a buzz and then schedule the broadcast release (with extra material) once an audience has already been assembled and primed.  The broadcast release would be an "event" at that point, and probably generate much greater viewership and revenue.

That's what I think today, but I'm sure that will change.  I seem to adjust my view almost daily as the landscape continues to shift.  The folks at Starz are very smart and this strategy could work out really well for them.  I'll be watching carefully, and more than ready to update my opinion based on the outcome.