Lawsuit Brought By Cosby Show Production Company Against Documentary Is The Reason We Have Fair Use

from the textbook dept

Looking through the history of our posts on the topics of fair use and fair dealing, you find plenty of examples for why these exceptions to copyright law are so important. These exceptions are, at their heart, designed to be boons to the public in the form of an increased output in creative expression, educational material, and public commentary on matters of public interest by untethering the more restrictive aspects of copyright law from those efforts. Without fair use and fair dealing, copyright laws are open for use as weapons of censorship against unwanted content, rather than being used for their original purpose of increasing expression and content. Still, in the history of those posts, you might struggle to find what you would consider the perfect example of why fair use laws are necessary.

Well, look no more, because we have that example in the case of the production company behind The Cosby Show suing the makers of a documentary entitled Bill Cosby: Fall of an American Icon.

The production company that made The Cosby Show has sued the BBC (.pdf) over a documentary the British network aired about the rape allegations against Bill Cosby. Carsey-Werner, the production company that is the plaintiff in the case, says that the documentary is infringing its copyright because it uses eight audiovisual clips and two musical cues from The Cosby Show

The complaint lists eight video clips that are used in the documentary. All are between seven and 23 seconds long, except for one clip that lasts 51 seconds. Adding together the time that viewers are either seeing a clip or listening to one of the musical cues, lawyers for the plaintiff say that "the Infringed Works were either seen or heard (or both) in Fall for a total of 234 seconds," or a total of 6.5% of the hour-long documentary.

Those clips, totaling less than four minutes of total run-time, were enough for the Carsey-Werner Company to file this suit, complaining that the clips were unlicensed and, therefore, infringing upon its copyright of the show. The complaint also insists that the documentary could have and should have been made without those clips at all, indicating that this is not a fight over lost licensing revenue, but the use of the clips at all. Even more absurdly, the complaint claims that the documentary used the clips because the filmmakers knew that clips of The Cosby Show would "appeal to viewers."

Anyone with a cursory knowledge of fair use laws will realize that the use of the clips in this case is obviously protected for any number of reasons. The clips are short in length and in no way compete with the original show. The purpose of using the clips is not to compete with the show at all, in any case. Finally, the use of the clips is undertaken as part of a commentary on a public and maligned figure in Bill Cosby. Literally everything about this screams for a fair use defense, all the way up to and including the fact that the clips weren't used to "appeal" to viewers at all, but rather to show Cosby's one-time status as an American icon and, I surmise, to give viewers the impression that watching the shows knowing what we know now is just kind of gross. There's simply no way to make this documentary properly without including some clips of the show.

Norma Acland, Carsey-Werner's general counsel, seemed to acknowledge as much when asked if any licensing agreement would even have been entertained.

When I suggested Carsey-Werner might decline to license any clips at all for a documentary about criminal allegations against Bill Cosby, Acland said the right to decline licensing is "one of the major parts of being a copyright owner, isn't it?"

Asked whether Carsey-Werner would have agreed to license clips for the documentary at all, Acland said, "I don't know the answer to that. But at least we would have had the choice, wouldn't we?"

Except that removing that choice from the copyright holder is the very purpose of fair use laws. And it's important too. The Cosby documentary is a perfect example of this: it's about a public figure involved in allegations of sex crimes that are certainly in the public interest, therefore no commentary should be under threat by the copyright holder of that public figure's work. To suggest otherwise is plainly against the public interest and, frankly, more than a bit crazy.

I asked Acland if she was concerned about the possible implications on freedom of speech if copyright owners could stop documentarians from using television clips without permission and payment.

"I didn't realize you wanted to have a conversation about that," she said, declining to answer questions related to free speech.

One imagines Acland will be forced to speak on this topic at trial, should it ever get that far.


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  • icon
    aerinai (profile), 10 Nov 2017 @ 9:31am

    Very Telling

    I didn't realize you wanted to have a conversation about that This kind of damning statement and pivot shows you that these scumbags know full well what they are doing when they attempt to abuse copyright like this. They know that there is nothing they can say to make them look good about the position that they are taking. This is a nuisance suit pure and simple. They know it has no merit, but want to discourage others from doing the same with their IP in the future. Judges need to be getting wise to this and start tossing these cases early, often, and make the loser pay legal fees.

    But this is America, so no chance on that ever happening.

    reply to this | link to this | view in chronology ]

  • icon
    JoeCool (profile), 10 Nov 2017 @ 9:57am

    Wrong venue

    Since this involves the BBC, they need to file this in the UK. Then they don't need to worry about pesky things like "Fair Use". They can even throw defamation into the list of charges while they're at it!

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 10 Nov 2017 @ 9:57am

    The documentary could stop the show's revenue stream

    Would the production company have allowed clips of the show in documentary if they were asked? I would say, probably not.

    I think the real issue is that the documentary definitely "maligns" the reputation of Cosby and by extension, his show. But since the production company can't sue over true facts, they have to sue over copyright.

    And since the show is still on TV and sold on DVD, the production company probably doesn't want a documentary to be released, which could affect their revenue.
    Sure, Cosby's issues have been on the news, but a documentary could have a bigger reach: look what happened to SeaWorld after the documentary "Blackfish" was released.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Nov 2017 @ 10:01am

      Re: The documentary could stop the show's revenue stream

      ...and?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Nov 2017 @ 11:00am

      Re: The documentary could stop the show's revenue stream

      What would the production company do if the documentary did not include the pix or music but rather simply stated the facts of the case?

      I'm guessing they would still attempt to stop the documentary in any way possible.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 10 Nov 2017 @ 12:16pm

      Re: The documentary could stop the show's revenue stream

      the documentary definitely "maligns" the reputation of Cosby and by extension, his show

      His reputation was maligned long before this documentary ever aired.

      reply to this | link to this | view in chronology ]

    • identicon
      Thad, 10 Nov 2017 @ 12:27pm

      Re: The documentary could stop the show's revenue stream

      But since the production company can't sue over true facts, they have to sue over copyright.

      Suing over true facts wouldn't have any less basis in law than this copyright suit has.

      reply to this | link to this | view in chronology ]

      • icon
        Eldakka (profile), 13 Nov 2017 @ 4:22am

        Re: Re: The documentary could stop the show's revenue stream

        Suing over true facts wouldn't have any less basis in law than this copyright suit has.

        I think it would.

        It is pretty cut and dried that a fact is a fact - either it is a fact or it isn't. Determining if something is a fact is generally an objective, measurable process. No (or little) subjective decision making needed.

        However, fair use and copyright - even in the face of the 4-factors test - is still a much more subjective decision than deciding over true facts. Each factor in the 4 factors test is itself a subjective test.

        So while they don't stand much chance over this suit, it's a hell of a lot higher chance (a snowballs chance sitting in the sun on a hot day vs a snowballs chance in hell) than trying to sue over facts.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Nov 2017 @ 6:07am

      Re: The documentary could stop the show's revenue stream

      The real issue is that Cosby's own actions definitely "maligns" the reputation of Cosby.

      FTFY

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 Nov 2017 @ 11:37pm

      Re: The documentary could stop the show's revenue stream

      Are they even still selling the Cosby show? I'd half expect them to drop it to avoid the reputation damage. Like how "Song of the South" is going to stay in the Disney vault indefinitely despite the same 'let's watch something horrible' following it would have with the morbidly curious and 'historical' usage of it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2017 @ 10:09am

    Perhaps this was filed in the US so to get a default ruling and an easy win being as the BBC is outside of the US jurisdiction.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 10 Nov 2017 @ 10:20am

    The power corruption engine

    Perhaps a better way to manage ones reputation is to not do dastardly things in the first place. Entitlements felt by the rich, who then think they are therefore powerful (and in some ways they are) do not have the power to reverse the release of the bad things they do.

    The best way to keep a secret is to tell no one. If, however ones behavior involves others, the secret is already out.

    reply to this | link to this | view in chronology ]

    • icon
      ralph_the_bus_driver (profile), 10 Nov 2017 @ 12:14pm

      Re: The power corruption engine

      The problem here though is no one came forward or even reported anything to police for months, in the current case before the courts, and decades for other cases. As much as you can claim someone is claiming an entitlement of the rich, it could also be said he is a target for grifters.

      When a prosecutor said there wasn't enough evidence for a conviction 10 years ago and after a hung jury, the current prosecutor wants to keep pressing, this sounds more like persecution.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2017 @ 1:23pm

    It would seem that Bill Cosby would be all in favor of the concept of "fair use" ... at least regarding vaginas.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Nov 2017 @ 4:16pm

    Since you asked....

    **Acland said the right to decline licensing is "one of the major parts of being a copyright owner, isn't it?"**
    It isn't, when it comes to fair dealing.

    **"I don't know the answer to that. But at least we would have had the choice, wouldn't we?"**
    You would have had the choice of whether to be paid to provide the clips, or have them use the clips anyway. Not whether they'd be used at all.

    **"I didn't realize you wanted to have a conversation about that."**
    That being... the underlying reasons for the lawsuit?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Nov 2017 @ 6:13am

    Thank you Norma Acland

    Much thanks goes out to Norma Acland for taking legal actions that resulted in me learning about the existence of this documentary. Can't wait to watch it!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Nov 2017 @ 11:33pm

    It is the UK

    With Jimmy Saville and it coming out that his abuse of the young, old, living, and dead were open secrets it is abundantly clear that parliament values protecting the reputation of its 'elites' whether they deserve it or not over you know, kids not being raped.

    And since libel tourism isn't an option here they had to go with copyright law.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2017 @ 4:47am

      Re: It is the UK

      Copyright law has basically devolved into a universal hammer for litigation. Hell, bulldozer might be a better descriptor.

      When you've got a law that is rarely questioned by judges, requires very little evidence or substantiation, is protected by standards of "good faith" that are nigh insurmountable, and has little to no consequences for abuse... well, this is what happens. We get "notice and staydown" for bloody everything.

      It's only a matter of time before someone claims right to murder because he holds the copyright of someone else's face.

      reply to this | link to this | view in chronology ]


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