On May 24th, ABC Television—a flagship of the broadcast subsidiary owned by The Walt Disney Company—aired a two-hour television special entitled “The Last Days of Michael Jackson.” Shortly thereafter, the King of Pop’s estate issued a statement condemning the special—and the copyright infringement battle began.
The special, which Disney argues is a “documentary,” chronicled Jackson’s life and legacy, from finding childhood stardom in the Jackson 5 to “This Is It,” the much-anticipated comeback concert that Jackson never lived to perform—and everything in between. It featured never-before-seen interviews, conversations with his friends and family and incorporated excerpts of songs, videos and other material of Jackson.
Almost as soon as the special aired, Jackson’s estate filed a lawsuit under the guidance of lawyer Howard Weitzman, accusing the media giant of “flagrant and willful” infringement of its intellectual property, including use of at least 30 copyrighted works such as “Don’t Stop Til You Get Enough,” “Bad,” and music videos from “Thriller,” to name a few. Also included in the complaint were countless examples of Disney’s aggressive enforcement of its own intellectual property
On Monday, August 14th, Disney fired back in its answer with the intent of taking a stand against “overzealous copyright holders.” (Oh, the irony!) Disney, who is being represented by Daniel Petrocelli, moved to dismiss the lawsuit on the basis of the doctrine of fair use under the Copyright Act.
“Fair use” is a valid defense against a claim of copyright infringement so long as the unauthorized copying of the copyrighted material is done for a limited and transformative purpose, such as to comment upon, criticize, or parody. What actually constitutes “fair use” is debatable. Over the years, millions of dollars have been spent to determine a clear definition only for general guidelines and an abundance of differing court decisions to provide a meaning as open to interpretation as the term “free speech.”
In this case, Disney claimed that the special’s documentary nature constituted a limited use of the copyrighted material, which was used solely to provide “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”—the very amendment that protects our free speech.
Presumably, what Disney seems to be saying is that any use of copyrighted material in a “documentary” is fair use—as long as the copyright is not that of Disney’s.
Perhaps what will come of this case is a better understanding of “fair use,” but more likely, it will be another conflicting court decision. Time will only tell. The federal judge has yet to rule on Disney’s motion for dismissal.
