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.

California Girls: The Beach Boys, Katy Perry and Copyright Law

According to a number of news accounts (like this one at Billboard.com), Rondor Music (a division of Universal), the publisher of the hit Beach Boys song, California Girls, has sent a demand to Katy Perry in connection with her current hit, California Gurls. Rondor is seeking compensation for an alleged copyright infringement. The gist of the claim stems not from the obviously similar title (titles of songs are generally not subject to copyright protection), but a similar lyric.

The main lyric of the Beach Boys' tune is "I wish they all could be California girls." At the end of the Katy Perry song, guest rapper Snoop Dogg improvises the line, "I really wish you all could be California girls."  So, the question is whether this similar lyric legally entitles Rondor to compensation.

I could obviously write a whole article on the legal concepts underlying copyright infringement and how they apply in this case. However, this is an informational blog, not a legal journal, so let me make it short. The essential idea is whether the Snoop Dogg lyric creates enough of a legal similarity between the two works to trigger liability. (There might be other relevant factors, such as whether it was actually "copied" for legal purposes, but I think the similarity issue is the most pertinent.)

There are actually several different tests of similarity that courts have applied in these cases. Again without belaboring the issue, the most obvious fact is that this is one line out an entire song, and it's not even identical to the original line from the Beach Boys' song. On the other hand, it is the most prominent lyric from the original song.

Another consideration is that the idea behind a creation cannot be protected; only the expression of that idea. So, the question arises whether Snoop Dogg was only capturing the same idea, or actually copying the expression of the idea.  And you could even argue that Snoop Dogg's rap is a parody of the original Beach Boys line; that would undermine Rondor's argument, as well.

All of these are good and legally relevant questions.  Personally, I could make an argument for either side of the case.  With that said, my opinion is that this does not rise to the level of an infringement.  However, I don't think it will ever get to court.  At this point, Rondor has not even filed an action, and I don't think they ever will.  Some money is likely to change hands and the issue will quietly go away.  Too bad really -- it would have made a very interesting lawsuit.