David Letterman said on Wednesday night that his lawyers had contacted Joaquin Phoenix to request compensation for the use of Late Show footage in his fake documentary, I’m Still Here. According to Letterman, Phoenix’s lawyers had initially justified its inclusion as “fair use” of copyrighted work because the movie was a documentary. Since the movie’s actually fake, Letterman said, Phoenix should pay up. Letterman was probably joking, but could he have a case?
Probably not. U.S. copyright law says that it’s OK to reproduce copyrighted material “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” all of which fall under the doctrine called “fair use.” Whether or not I’m Still Here is a documentary strictly defined, a lawyer for Phoenix and director Casey Affleck could argue that the film is a commentary on the original footage, not just an appropriation of it.
Courts weigh four factors to decide if the reproduction of a copyrighted work counts as “fair use”: The “purpose and character” of the use (commercial or nonprofit), the nature of the copyrighted work (factual or expressive), the “amount or substantiality” of the use (short or long, substantial or insubstantial), and “the effect of the use upon the potential market for or value of the copyrighted work” (whether it hurts the original creator’s ability to profit from his or her work). As a general rule, a shorter reproduction of a factual work, such as a newscast, for nonprofit educational purposes is more likely to get a “fair use” exemption than a longer reproduction of a creative work, such as a poem, for commercial purposes.
In recent decades, courts have weighed most heavily the first factor, the “purpose and character” of a work. Key to the court’s decision is whether the new work is “transformative”—that is, whether it alters the content or meaning of the original. Parody, for example, is considered “transformative” use. In the 1994 case Campbell v. Acuff-Rose Music, the Supreme Court ruled in favor of the hip hop group 2 Live Crew when Roy Orbison’s songwriting firm sued it for parodying Orbison’s song “Oh, Pretty Woman.”* The court’s logic: 2 Live Crew may have appropriated the original song, but only so that they could change it and make fun of it. Likewise, a federal appeals court ruled in favor of Google in 2007 after a porn site sued them for reproducing its pictures as thumbnails for Google Image Search. The court reasoned that the photos were sufficiently transformed—from a commercial purpose to an informational purpose; i.e., to help people find the real, high-quality images—to fall under “fair use.” A lawyer for Phoenix could similarly argue that his movie transforms the original Late Show clip simply by putting it in a context with new meaning. Whether that context is “real” or not doesn’t matter.
Working against Phoenix would be the length of the clip he used. His appearance last year on Late Show was about 10 minutes long. The clip in the film is about five minutes. While determining whether an excerpt is long or short, substantial or insubstantial, is largely subjective, a judge would almost certainly consider a five minute clip of a 10-minute interview long and substantial—and that factor would weigh against “fair use.” Same with the clip’s effect on the market for the original work. Late Show presumably licenses clips all the time. A lawyer for Letterman could therefore argue that Phoenix’s appropriation of the clip hurt the market for Late Show clips by depriving Letterman of compensation for this and, if other filmmakers take Phoenix’s cue, future clips of the show.
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Explainer thanks James Boyle of Duke University School of Law and Greg Lastowka of Rutgers School of Law. *
Correction, Sept. 27, 2010: Originally this article incorrectly stated that Roy Orbison himself sued 2 Live Crew. ( Return to the corrected sentence.)