All transformative from here: 2013 case about music in reality film

Threshold Media Corp. v. Relativity Media, LLC, No. CV
10-09318, 2013 WL 11287701 (C.D. Cal. Mar. 15, 2013)

 

Older case that just popped up in my Westclip search;
blogging because it’s still interesting after three years.  Threshold sued Relativity for infringing its
copyright in two sound recordings by using portions in Relativity’s film Catfish. 
The recordings were of the same song, “All Downhill from Here,” as a
duet by Amy Kuney and Tim Myers.  The
studio version is 3:29 in length, and the acoustic version is 3:09.  Catfish
was a “reality thriller” filmed in documentary style.  It followed Yaniv Schulman, a 24–year–old
photographer who lives in New York City, as he developed an online friendship
with Abby, an eight-year-old girl in Ishpeming, Michigan, her mother Angela,
and several of their family and friends, especially Abby’s 19–year–old
half-sister, Megan. Yaniv’s brother, Ariel, and their friend Henry Joost filmed
Catfish.

 

The film begins as Abby and Yaniv have been corresponding
because of paintings Abby created based on Yaniv’s photos, which she saw in a
newspaper article.  Yaniv thinks that
Megan “has a big crush” on him; she writes and records a song for Yaniv, which
is played while Yaniv discusses it.  They
flirt online. 


In the first use, Megan (using IM) says she’ll take requests and record a
song.  Yaniv asks for “Tennessee Stud.”
She emails Yaniv an acoustic recording, which Yaniv plays while he, Ariel, and
Henry discuss how impressed they are with her talent.  Angela also posted copies of songs purportedly
recorded by her and Megan. “Yaniv clicks on a song entitled ‘Downhill,’ and the
Acoustic Recording is heard playing from his computer for approximately 19
seconds–from the beginning of the song until partway through the third line of
the introductory verse.”  With the music
in the background, “Ariel and Henry tell Yaniv to let Megan know how much they
love her songs, and Yaniv is shown typing this into an instant message.”

 

In the second use, “Ariel begins singing along with the
music before it cuts out, continuing for a few seconds afterward, for a total
of approximately 16 seconds.”  The third
use is ominous: Ariel googles “ ‘its [sic] all downhill from here’ song” and
the film cuts to a shot of an audio player playing “All Downhill From Here / BY
Amy Kuney [featuring] Tim Myers / ON One Tree Hill.”  The studio recording plays for 28 seconds
total; after 8 seconds, Yaniv and Ariel discuss the similarities, but Ariel
says that Angela’s is better. Yaniv and Ariel discuss Megan’s failure to
attribute the source:

 

Ariel: All right. Listen, you can’t
hold it against her. She didn’t say, “Hey, I wrote this song.”

Yaniv: It doesn’t matter, it’s just
still–yeah.

Ariel: Yeah. And still, her voice
is ten times better than this girl. And she’s clearly an artist because that
came from a deep– from deep expression and feeling.

Yaniv: And she found a song, kind
of obscure.

Ariel: She covered a song, yeah.
People make careers out of that.

Yaniv: Yeah.

 

The fourth use is the full reveal: we hear a track entitled
“Amy Kuney ‘All Downhill From Here’ (Original) from One Tree Hill,” the
acoustic recording.  The friends discuss
whether this is the same recording; Yaniv realizes that he’s been deceived and becomes
agitated, condemning Megan for accepting his compliments on her singing.  They discover that she also copied “Tennessee
Stud,” which was actually performed by Suzanna Choffel.  The rest of the film chronicles their journey
to confront Megan and Angela, which leads to the discovery that Megan—and most
of the rest of Abby’s friends and family—were merely Angela’s creations.

 

The court found that the uses of the recordings were highly
transformative, adding new expressive content and using the original expression
for an entirely different purpose.  The
music comprised only part of the scenes, which had video footage, original dialogue,
and other sounds.  The men comment on the
quality of the music, albeit not in “erudite” terms (“[t]his one’s sick”; the
acoustic recording is “better” than the studio recording), and discuss whether
the recording attributed to Amy Kuney is the same recording Angela posted on
her Facebook page.  “This critical
commentary and analysis falls squarely within the category of new expressive
content that transforms the copyrighted expression into something different.”  Criticism and review are broad concepts,
applicable here.  “Nor is it relevant
that their commentary was presented as part of a work of entertainment”;
entertainment can include critical commentary.

 

The use also served a completely different purpose than the
original, a consideration that can allow “wholesale copying of an entire work.”
The original’s purpose was to entertain listeners. “The purpose of including
Kuney’s song in Catfish was not to
entertain using Kuney’s music and lyrics or even to evoke a similar story line”
of a person who withdrew from the world after a failed relationship. Instead,
it was to show Angela’s deception and to document the pivotal moment in which the
deception was discovered.  Only
comparison allowed Yaniv to determine that Megan had falsely claimed the song
as her own; by playing the song, the filmmakers invited the audience to make
the same comparison to reach its own conclusion.  “This critical analysis is entirely different
than the song’s original entertainment purpose.”  SOFA Entm’t v. Dodger Prods., 709 F.3d 1273 (9th
Cir. 2013), accepted a similar use of a music clim in a play for historical
purposes, and Lennon v. Premise Media Corp., 556 F. Supp. 2d 310
(S.D.N.Y.2008), found fair use the movie Expelled’s
use of a clip of Lennon’s “Imagine” to critique the scientific theory of
evolution and, by implication, Lennon’s naiveté.  Catfish is even more transformative than
Expelled, which used the copyrighted
song and its lyrics to convey the song’s original message–albeit in a critical
manner. In contrast, Catfish uses
Kuney’s song as a plot device–in an entirely different story–to identify (or,
more accurately, misidentify and then clarify) the song’s author.”  The explicit attribution to Kuney as the real
author also weighed in favor of fair use. 
(Note that the court didn’t find that lack of attribution to the copyright owner was relevant.)

 

“Defendants recorded and published clips of Kuney’s song not
to retransmit its message in a different medium, but because the song played an
integral role in the plot of an unfolding story about the reality and unreality
of online relationships.”  Catfish was, in some sense, designed to
entertain, but it didn’t entertain in the
same way
as “All Downhill from Here,” and was therefore
transformative. 

 

Threshold argued that Relativity could have used an
alternative storytelling device to reveal Angela’s lies without “gratuitously”
playing the song again and again.  Nope:
first, the song wasn’t repeated gratuitously. 
Second, the filmmakers didn’t choose the song.  The uncontroverted evidence was that the film
documented “the real-life relationship between Yaniv and Angela,” although it
may have distorted reality in other respects; thus, a reviewer’s conclusion
that the film was “slipshod in its adherence to basic ethical norms” was
irrelevant. There was just no evidence that the filmmakers had any control over
the songs Angela chose.  “Whether certain
members of the general public doubt that the events depicted in the film are
real is irrelevant.”  The only critical
fact, confirmed by Threshold’s citation of off-camera evidence, was that “Yaniv
did not realize before the scene at issue that Angela had copied the songs from
somewhere else and was genuinely surprised to find out the truth.” 

 

Thus, the fact that Catfish
was commercial had minimal relevance, as did the expressive nature of Kuney’s
original work (factor two).  The amount
of the work used—about 22% of the acoustic recording and 12% of the studio recording—was
also okay in light of the purpose.  Catfish used no more than necessary to
document the critical events. The first use was “enough to give the audience a
sense of the song but no more”; similarly, the second use was no longer than
necessary “to give the audience a sense of what he is doing.”  The third use basically repeated the first
use, now attributed correctly, and used “long enough for Yaniv and the
filmmakers to comment on and for the audience to grasp the two versions’
similarity. The fourth use … is somewhat longer because Yaniv, Ariel, and Henry
are commenting on the track more actively as it continues to play in the
background.”  By the time the chorus comes
on, “the scene’s focus is on the realization that Angela has lied rather than
on presenting the music for its own inherent entertainment value.


Threshold argued that Relativity could have used an alternative plot device to
reveal the deception, though it didn’t explain how.  Though the filmmakers could have reenacted the
scene with different music or replaced the scene with an interview of Yaniv
narrating the key events. “But such alternatives artificially impinge upon the
creative process. They would force the filmmakers to sacrifice the film’s
verisimilitude, its drama, or both. The descriptive term ‘reality thriller’
would no longer apply.”  Though “one
might quibble whether the filmmakers could have cut a second or two from their
uses,” the overall amount used was reasonable in light of the purpose, and thus
factor three favored Relativity.

 

Finally, market effect: Catfish
wouldn’t substitute for a purchase of the song. 
Digital music stores typically allow prospective purchasers to hear at
least 30-second samples; [i]t is inconceivable that hearing a similarly timed
clip of Kuney’s song in Catfish would
dissuade a listener from purchasing it if the listener were otherwise
predisposed to do so,” especially since the audio quality of the song in the film
is low because it’s played through laptop speakers and captured as ambient
sound instead of being recorded directly into the audio track—“or at least the
film is engineered to sound that way.”

 

Nor was there any harm to potential synch licenses.  Even if the onetime use of the song on a TV
show in the past showed a market demand for future synch licenses, which was
doubtful, Catfish wouldn’t affect
that demand.  Market demand for synch
licenses for TV and movies “inevitably tapers off over time as the song falls
out of people’s favor or memories,” and creators of audiovisual works may
prefer recently released songs.  Some
songs are more enduring than others, but this song was published on May 18,
2008, and licensed the next day for use in a One Tree Hill episode. More than two years passed before Catfish came out, with no further
licensing of the studio recording, and the acoustic recording had never been
licensed.  “These facts are inconsistent
with Plaintiff’s assertion that a synchronization market exists.”  If anything suppressed demand for synch
licenses, it was far more likely that it was the use in One Tree Hill.  “The creators
of other television shows and movies, wanting their works to appear fresh, may
not want to synchronize a song that has already been heard on television.”  There was no evidence that any of Kuney’s
other songs had been licensed more than once.

 

Balancing the factors, the court noted that the filmmakers
didn’t have a choice about which song to use in the story to document the
critical moment that Yaniv first realized that Megan and Angela were lying to
him.  This was not an ordinary
synchronization context, “where the filmmakers or studio can bargain with
various artists for the use of their songs in a film, television show, or
commercial. If one artist presents a holdout problem, … there is a sufficiently
large market that the filmmaker or studio can decide how to balance the
economic and artistic tradeoffs.”  Catfish couldn’t turn to that market. “To
hold that their use of Amy Kuney’s music was not fair would be to grant
Plaintiff not just a copyright but–in effect–a veto over a new, transformative
work.”  So, fair use.

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