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.
3 comments:
I am glad you’ve taken this up to debate - even if we don’t yet agree. The main reason I wrote the post was that I didn’t find much discussion of the argument, even on my favorite blogs related to copyright and culture (a few have now appeared). As I’ve stated, I’m not an attorney, but I still (think) I disagree. Would love to hear more from you and other copyright experts, and will ultimately defer to consensus (if we get that far).
First, I don’t believe that Fair Use was intended to “allow journalists and educators to use small portions of copyrighted material in order to inform and educate the public.” My layman’s understanding is that fair use is an acknowledgement that we need some leeway in the special considerations granted to creators via copyright to ensure the public good, so to speak. To allow certain creative, educational or other public goods while still respecting a creator’s general rights. I believe there have been many court cases that affirm a fair use right beyond what your above quote considers. Perhaps a small point, but I think it does matter.
Second, I don’t think that commerciality (or not) is a necessary requirement to qualify for fair use. Didn’t the Supreme Court decision in Campbell vs Acuff-Rose (aka the 2 Live Crew decision) specifically argue that it didn’t matter whether a work was commercial or not? My understanding is there are the “four tests” for fair use, but that being non-commercial is just one, and that not all of the tests must be matched to qualify. Granted, I am going by memory aided by Wikipedia, so perhaps I missed some nuance here.
Third, and going back to the 2 Live Crew decision, it seemed the Supreme Court acknowledged some special consideration for parody and some copyright folks generally extend this to social, political or cultural critique (reading here from the Fair Use Best Practices of CSM as well). If the “best practices” are correct, then I would gather that this mock/doc/whatever is pretty clearly falling in the cultural/social critique camp. Further, if these best practices are correct, then this also qualifies as a correct use of “archival material in historical sequences.”
Last, I think, I don’t see how the fact that an archival footage market exists is a problem - again, my reading of the news around the 2 Live Crew case is that the Court acknowledged that a market existed for rap samples, but still agreed that the usage was Fair Use.
I don’t honestly have a dog in this fight. Anyone who reads my blog knows that I am generally pretty “copy-left,” but I am not in favor of granting any fair use rights where they shouldn’t exist. I genuinely want to know whether many legal experts agree or disagree that this should be considered fair use - so feel free to attack these non-expert opinions. I think that one of the problems of fair use for creatives is that you have to defend it to claim it - there aren’t any clear legal guidelines, even with the good work that Pat Aufderheide, Peter Jaszi and Michael Donaldson (among many others) have been doing to try to clear this up.
Glad to continue the discussion. Here's the CSM link btw: http://www.centerforsocialmedia.org/fair-use/related-materials/teaching-materials/examples-successful-fair-use-documentary-film
I am glad you’ve taken this up to debate - even if we don’t yet agree. The main reason I wrote the post was that I didn’t find much discussion of the argument, even on my favorite blogs related to copyright and culture (a few have now appeared). As I’ve stated, I’m not an attorney, but I still (think) I disagree. Would love to hear more from you and other copyright experts, and will ultimately defer to consensus (if we get that far).
First, I don’t believe that Fair Use was intended to “allow journalists and educators to use small portions of copyrighted material in order to inform and educate the public.” My layman’s understanding is that fair use is an acknowledgement that we need some leeway in the special considerations granted to creators via copyright to ensure the public good, so to speak. To allow certain creative, educational or other public goods while still respecting a creator’s general rights. I believe there have been many court cases that affirm a fair use right beyond what your above quote considers. Perhaps a small point, but I think it does matter.
Second, I don’t think that commerciality (or not) is a necessary requirement to qualify for fair use. Didn’t the Supreme Court decision in Campbell vs Acuff-Rose (aka the 2 Live Crew decision) specifically argue that it didn’t matter whether a work was commercial or not? My understanding is there are the “four tests” for fair use, but that being non-commercial is just one, and that not all of the tests must be matched to qualify. Granted, I am going by memory aided by Wikipedia, so perhaps I missed some nuance here.
Third, and going back to the 2 Live Crew decision, it seemed the Supreme Court acknowledged some special consideration for parody and some copyright folks generally extend this to social, political or cultural critique (reading here from the Fair Use Best Practices of CSM as well). If the “best practices” are correct, then I would gather that this mock/doc/whatever is pretty clearly falling in the cultural/social critique camp. Further, if these best practices are correct, then this also qualifies as a correct use of “archival material in historical sequences.”
Last, I think, I don’t see how the fact that an archival footage market exists is a problem - again, my reading of the news around the 2 Live Crew case is that the Court acknowledged that a market existed for rap samples, but still agreed that the usage was Fair Use.
I don’t honestly have a dog in this fight. Anyone who reads my blog knows that I am generally pretty “copy-left,” but I am not in favor of granting any fair use rights where they shouldn’t exist. I genuinely want to know whether many legal experts agree or disagree that this should be considered fair use - so feel free to attack these non-expert opinions. I think that one of the problems of fair use for creatives is that you have to defend it to claim it - there aren’t any clear legal guidelines, even with the good work that Pat Aufderheide, Peter Jaszi and Michael Donaldson (among many others) have been doing to try to clear this up.
Glad to continue the discussion. FYI, Google won't let me link to the CSM and other references for some reason, sorry.
Hi - tried to leave a comment, but Google (and probably everyone else) thinks it's too long. Posting it on my blog at www.springboardmedia.blogspot.com
Summary - I am glad to spark some discussion, but as of now disagree. Love to hear more from your more expert opinion
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