Unauthorized documentary film maker faces copyright infringement suit. ABKCO v. CODA

Unauthorized documentary film maker faces copyright infringement suit. ABKCO v. CODA

A copyright is a set of exclusive rights granted to the creator of a new work of expression.  Expressive works such as music, choreography, and movies are all eligible for copyright protection.  A creator is granted a copyright when they fix their expressive work in a tangible medium.  This means that when a creator saves their sheet music to a hard drive, records themselves performing a song, or records a video of their performance, they are granted a copyright to their work. A copyright grants its owner the exclusive right to reproduce, distribute, perform, display, transmit, and make derivative works based on the original.  If someone other than the copyright owner attempts to exercise one of these exclusive rights, that can be considered copyright infringement.

When it comes to documentary films about artists, copyright law gets complicated.  A persons life is a series of facts that cannot be granted copyright protection.  However a documentary about a person, especially an artist, that is just a list of facts would be rather boring.  To tell a story about a person media like images, sounds and videos about the person must be displayed to give the viewer context.  If the person making the documentary can get permission to use this media then there is little problem.  Unauthorized documentaries are where things get complicated.  If a documentary is made about an artist, examples of the artist’s copyrighted works will be included.  Reproducing a copyrighted work can be considered copyright infringement.

The fair use doctrine of copyright law will allow creators to borrow a certain amount of copyrighted works owned by others.  A fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.  A documentary can be considered a commentary about a person, therefore fair use can apply, but there is no bright line rule to exactly how much of a copyrighted work can be used before a fair use becomes copyright infringement.

Fair use is an affirmative defense to copyright infringement.  This means that a copyright defendant must plead the defense and present evidence to the a court to demonstrate that their use qualifies as a fair use.   17 U.S.C. § 107 of United States Copyright Law outlines the following four factors in evaluating a question of fair use: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.  No single factor is determinate of fair use and courts are free to find fair use even if three out of the four factors disfavor fair use.  Because the fair use factors are open to interpretation it is beneficial to study precedent to see how the courts have applied the fair use analysis to certain fact patterns.

ABKCO MUSIC & RECORDS, INC., v. CODA PUBLISHING, LTD., 1:19-cv-11892 (S.D.NY 2019) involves unauthorized documentaries about several musical groups.  The plaintiffs in this case are the right holders to songs written by several popular bands like The Rolling Stones, ABBA, Nirvana and Elton John.  The defendant in this case created unauthorized documentary films about the bands represented by the plaintiff.  The plaintiffs claim that the documentary films are nothing more than a way to side step copyright law and reproduce copyrighted music without permission.  The plaintiffs request that statutory damages of $150,000 per infringement be imposed and that the documentary films cease distribution.

The defendants have not responded to the complaint yet, but they will no doubt claim that their use of the plaintiff’s copyrighted music is a fair use.  How persuasive the court will find this argument will depend on how well the defendant’s attorneys can demonstrate that the fair use factors apply to the documentaries.

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