Disney is being sued by the Michael Jackson estate for using fair-use clips in a biopic called “The Last Days of Michael Jackson” — in its brief, the company decries “overzealous copyright holders” whose unwillingness to consider fair use harms “the right of free speech under the First Amendment.”
On the one hand, har-har-har, the organization that has briefed innumerable courts on the narrow — nay, nonexistent — cases in which fair use applies to its copyrights is now facing a copyright troll who threatens its bottom line and it’s changed its tune, even going so far as to switch from its customary phrase “copyright owner” to the copyfighter’s “copyright holder.”
On the other hand, they’re right, and this is exactly what fair use is for: to allow for third parties to comment on copyrighted works and their creators, especially when the creators object. Sure, maybe Disney could buy licenses to the Michael Jackson videos they’re quoting in this doc, but if the Jackson estate objects because Disney is portraying Jackson in an unflattering light, do we really want to give them a veto? Shouldn’t the discussion of culturally significant figures be the subject of legitimate debate, without partisans (whose own income is dependent on maintaining the reputation of the dead entertainer) being able to decide who can criticize that figure and how?
I hope this goes to trial. I hope Disney’s “star litigator” and his team brief the court in no uncertain terms about the importance of fair use. I hope Disney wins. I want all those briefs to be in our hands the next time Disney (or another giant corporation) tries to crush someone else’s fair use rights.
Answering claims over illicit use of Michael Jackson rights, Disney states, “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 — here, in most instances well less than 1% of the 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 is being represented in the case by star litigator Daniel Petrocelli, leading an O’Melveny & Myers team that also includes Drew Breuder and Nicole Cambeiro.
“ABC News used and incorporated short excerpts of some songs, music videos and other material featuring Jackson within a two-hour documentary entitled The Last Days of Michael Jackson 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,” continues the court filing. “Plaintiffs’ lawsuit, in violation of these legal principles, constitutes an attempt to exercise unfettered control over public commentary and opinion on Jackson’s life and career.”
Disney Takes Stand Against “Overzealous Copyright Holders” [Eriq Gardner/Hollywood Reporter]