by Mike Masnick

Filed Under:
copyright, documentary, fair use

Copyright Lawsuit May Reveal Whether Documentary Movie Was Real Or Faked

from the fair-use-comes-down-to-this dept

Remember the situation with David Letterman and Joaquin Phoenix arguing copyright on Letterman's show? While they were joking about it, the issue revolved around whether or not Phoenix's last movie was really a documentary or not. It uses the famous clip of Phoenix acting crazy on Letterman's show in the film, and the producers claimed that it was "fair use," since it was a documentary. However, once Phoenix admitted that the whole thing was faked, Letterman realized it wasn't actually fair use any more. Of course, they were mostly (we think) joking around, but a similar issue may have cropped up in another lawsuit.

THREsq has the details of a lawsuit over the movie Catfish, a little indie documentary that supposedly shows the story of the filmmaker's brother getting involved in an online relationship, where the object of his desire later turns out to be someone entirely different than he thought it was. Apparently, when the film was shown, many people thought the fillmmakers must have setup the story, since it seemed unlikely to be real, but they insisted that it was an actual documentary and what is seen on camera was what actually happened.

Here's where it gets tricky, though. Apparently, one of the key parts of the movie is that the woman that this guy has met over the internet, emailed him some "songs" that she had recorded, and one of the ways he discovers that she's not who she says she is, is that he finds more information about the song on YouTube and realizes the woman who sent it to him did not actually write and record it. The song is actually All Downhill From Here, by Amy Kuney, who is signed to Spin Move Records. Apparently Spin Move and Kuney were happy to be featured in the movie at first -- with Spin Move doing a blog post touting how Kuney's song played a central role in the movie... but then the lawyers showed up and said, "hey, shouldn't we be getting paid...?" So the label removed the post and sued.

The filmmakers response, of course, is that it's a documentary, and it accurately portrays what happened, so it's fair use. So, now, they not only have marketing reasons to claim it's a documentary, but legal reasons as well. The lawyers for Spin Move, on the other hand, have every reason to seek to prove that the movie was planned, rather than just a documentary, because if that's the case, there may not be a fair use defense. Of course, the other possibility is that the filmmakers figure out a way to settle (i.e., pay up) before the case goes anywhere, and they don't have to swear under oath whether or not the movie is real...

Of course, when you think about it, this kind of highlights another rather silly aspect of copyright. Whether or not the use of the song is legal or not depends entirely on whether or not the film is a documentary or not. Note that nothing actually changes about the movie. When a copyright system punishes people based on how people classify a movie, that seems like the system isn't working.

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  1. identicon
    Jason, 9 Dec 2010 @ 9:50am

    Re: Still not a doco, as if that even matters.. doco's are not exempt from copyright.

    No, Darryl, it's really not that hard to understand, but in your case, I would recommend slowing down long enough to learn the subject a little better.

    It's not a documentary because of the topical matter, but because of the method and presentation. Unlike the Shindler's List, Pearl Harbor, and JFK films, a documentary is a filming of happenings not a filming of theater. It's not a recording of a retelling of history, it's a recording of the history as it happens.

    Not only would a documentary be damaged by altering to remove copyrighted material, copyright itself by statute, does not extend into the documentarian's work.

    Further, to rephrase what James Boyle explains in his book, the documentarian's defense isn't, "Oh I accidentally recorded your copyrighted work, I'm sorry I stole from you, but I need it for fair use, I'm so glad the law gives me this exception." Rather, according to law, the documentarian's defense is, "Gosh I'm sorry it bugs you, but your rights don't really extend over into my film because the law never intended to give you that much control over your work."

    Fair use in documentary film is well established and likewise has its own limits. A great resource can be found here: l-fair-use-documentary-film

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