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.