Thursday, September 23, 2010

Fair Use, Mockumentary and Letterman

Wow. It’s not often that pop culture, the latest indie docs and my interest in copyright collide. It happens less often than I watch Letterman, which is just about never. But lo and behold, there I found myself last night watching Joaquin Phoenix return to Letterman and a whole riff about Fair Use comes up! Now that was a truly unexpected turn of events.

If you didn’t catch it - video is linked below - the general summary is that Letterman talks with Phoenix about his infamous last appearance on the show and how he wasn’t “in on the joke.” The footage from this appearance shows up in the new film “I’m Still Here,” and Letterman jokes that their lawyers wanted CBS to be paid for showing the footage in the film, but that the filmmakers claimed Fair Use. Letterman then quips that it wasn’t really a documentary but a “theatrical ruse” and therefore, Phoenix and Affleck owe him a “million bucks.” Letterman continues joking about this for the remainder of their talk, which by my unofficial tally makes this the single longest time that Fair Use has been talked about in the mainstream media ever, or at least since 2 Live Crew was last in the news for “Pretty Woman.”

I’m no lawyer, but I’d put forth that showing this footage in their film definitely qualifies as Fair Use. On Twitter, Scott Macaulay of Filmmaker Magazine asked if this use qualifies as Fair Use since it was a mockumentary. It doesn’t matter whether your film is a documentary or not. It doesn’t matter if it’s a mockumentary, experimental film or even a narrative film. What matters is how the work is used. I’ll avoid getting into the nitty gritty of Fair Use here, as there are many other places to read up on the topic, but essentially your creative reuse must pass a few tests to qualify as fair use. One of the components of that test is whether the reuse is “transformative” and in the 2 Live Crew case, the Supreme Court argued that an artist’s parody qualifies as transformative enough to pass muster - even if that work was commercial in nature. They also noted that the parody would likely not cause any “market harm” as the two works (the original and the parody) existed in different market-places.

I think this same argument applies to the Letterman footage as well. Affleck and Phoenix are commenting on the nature of celebrity. They were parodying the obsessions and presumptions of that celebrity culture, including the Letterman routine. The film itself uses the footage to demonstrate or comment upon how people were seeing Phoenix as he mocked the system. To my mind, this is clearly fair use.

I’m sure some copyright experts out there can put together a more nuanced argument about this, but for some strange reason, my brief search of the interwebs today hasn’t brought up much commentary on this issue. If any of you legal folks out there agree - or disagree - I’d love to hear your take on this.

here's the video:


tom quinn said...

I was glad to hear this topic brought up last night, but my first thought was that, by my understanding, this film is still a documentary where the filmmakers are creating an event and documenting the response, no? Didn't cinema verite initially do the same, to a much lesser degree?

BNewmanSBoard said...

I think you are correct that it is still a documentary, even if they are faking some of it. The mockumentary attribution has come from others in reviews, etc.

Unknown said...

I think I disagree. That is like saying Borat was a documentary. It wasn't.

Great topic. I think I'm going to give a little longer response on my own blog.

Entertainment Law Update Podcast said...

Not a fair use, I'm afraid. the mockumentary takes substantially all of the segment from the letterman show, is for commercial use, has a meaningful impact on the market for the original (i.e., a licensing market exists for this kind of thing)

Roger Goff's analysis is worth reading.

We'll be disussing this situation in more depth on the Entertainment Law Update podcast Episode 14 later this week.

BNewmanSBoard said...

Thanks for alerting me to Roger's post. I am still open, but disagreeing for now. Here's my thoughts in longer form: