Copyright

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 @ 7:03pm

    Re: Re: Re: Re: Does not matter if its a movie or a Doco..

    "This is false. I'm wondering what you're relying on."

    I'm referring to USC 107. Yes, 107 has a four factor test to determine if a fair use claim applies, but that claim under 107 only exists to be tested if it's even remotely plausible that the purpose of the use falls into one or more of the categories of the first part of 107, "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research," if so then the four factors are weighed and it's determined whether this really is public territory.

    Now I suppose I must apologize because I guess I didn't mean to make it quite as black and white as you've taken me to mean. I recognize that particulars are particulars and there are some intermediary places that might seem to fall under the "purposes such as," which suggests that there may be similar, unnamed purposes that follow the same line of thinking, which would also be considered fair use.

    I really thought I hinted well enough that I understood that ("any line can be fuzzed") and was only simplifying here because when you're looking at documentary vs "haha not really" there's absolutely no need to split hairs.

    Sorry for being overly contextual, maybe next time we meet in the middle? I don't know.

    Correction: However, as for how this law works in this case, it's relatively straightforward.

    Better?

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