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Disney Fights Overzealous Copyright Holders With Fair Use

· August 15, 2018

As we’ve previously noted at DisCo (see, e.g., here and here), the entertainment industry opposes the inclusion of the Trans-Pacific Partnership agreement’s “fair use” language in the renegotiated NAFTA agreement. The entertainment industry likewise has opposed the adoption of fair use provisions in South Africa and Australia. However, as Disney’s ongoing litigation with the Michael Jackson estate demonstrates, entertainment companies rely heavily on fair use when they find themselves the target of copyright infringement litigation in the United States.

ABC News broadcast a documentary, The Last Days of Michael Jackson, which used excerpts from the concert film This Is It and the music videos for Thriller and Black and White. The Michael Jackson estate sued ABC News and Disney, its parent company, for copyright infringement.

In its recently filed motion to dismiss the complaint, Disney asserted that it would not be intimidated by “overzealous copyright holders” such as the Jackson estate. It observed that “this case is about the right of free speech under the First Amendment, the doctrine of fair use under the Copyright Act, and the ability of news organizations to use limited excerpts of copyrighted works…for the purpose of reporting on, commenting on, teaching about, and criticizing well-known public figures of interest in biographical documentaries without fear of liability from overzealous copyright holders.”

Disney further underscored the relationship between fair use and the First Amendment. (The Supreme Court in two cases—Eldred v. Ashcroft and Golan v. Holderhas referred to fair use as a built-in accommodation in the Copyright Act to the First Amendment.) Disney argued that it incorporated short excerpts of songs, videos and other material featuring Jackson within the documentary “for the purpose of providing historical context and explanation tracing the arc and aspects of Jackson’s life and career—precisely what is contemplated and permitted by the First Amendment.” It contended that the estate’s lawsuit “constitutes an attempt to exercise unfettered control over public commentary and opinion on Jackson’s life and career.”

Disney is completely justified in relying on fair use to defend itself in this litigation. And because Canada has a parallel concept, fair dealing, Disney and other media companies can protect themselves against “overzealous copyright holders” if sued in Canada. But Mexico’s copyright exceptions are far more parsimonious than those in the United States and Canada. In the absence of a fair use provision in NAFTA, Disney and other media companies could find themselves on the losing end of infringement suits in Mexico.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.