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.