Posted by PTravel on 06/29/06 19:49

"Larry in AZ" <usenet2@DE.LETE.THISljvideo.com> wrote in message
news:Xns97F17BE5BA201thefrogprince@70.169.32.36...
> Hey Paul,
>
> In an email list to which I subscribe, there's a discussion regarding a
> lawsuit possibly filed against Michael Moore for his use of bin Laden
> footage in his movie, "Fahrenheit 911."
>
> http://tinyurl.com/hdxjx
>
> The suit has, or may be brought by the shooter who had exclusive access to
> bin Laden in the late stages of the Russian/Afghan war of the late 80's.
>
> Someone on the list has suggested that Moore might plead "Fair Use."
>
> Are you free to discuss whether or not Fair Use could be used in the
> context of Moore's film..?
>
> Thanks, and I understand if you cannot comment.

Hi, Larry,

I'd prefer not to discuss Moore's film, specifically. However, I have,
within the last two months, answered this specific question for a client,
i.e. use of a third-party's protected expression in a documentary film. The
short answer is that it is NOT fair use to do so (absent other traditional
fair use defenses, e.g. parody), and WILL result in copyright infringement
liability.

There is one significant exception that is discussed in dicta (non-binding
discussions by judges in legal opinions) and confirmed in Nimmer, the major
copyright treatise in the U.S. (and admissible as persuasive authority in
any US court). I call it the "Zapruder Doctrine," because it references the
famous 8mm film clip of the Kennedy assassination shot by Zapruder.
Basically, the doctrine holds that there are some forms of filmed expression
in which the fact of the film itself, as opposed to the content in the film,
becomes the idea that is embodied withiin the protected expression. In
those instances, Merger Doctrine applies, i.e. idea and expression have
merged and are inseparable, First Amendment considerations then apply, and
copying the film will not result in liability. With respect to the Zapruder
film, the clip itself has taken on historical significance as the only
record of the assassination and a piece of evidence central to the Warren
Commission investigation. Because of this, there is no way to convey the
"idea" of the Zapruder film without actually reproducing it, hence the
application of Merger Doctrine.

I can't say whether the interview with bin Laden in Moore's film rises to
the level of historical importance such that Merger Doctrine would pertain.
I will note, however, that despite a number of judicial opinions that have
discussed the Zapruder Doctrine, there is not one single reported case that
has applied it in such a manner as to find a copyright infringement
defendant non-liable.

Accordingly, if I were a documentary film maker, I would not assume that my
use of someone's footage would fall within the Zapruder Doctrine. I would
retain a competent lawyer, obtain a non-infringement opinion (if possible --
I did _not_ provide one to my client for a variety of reasons, despite my
belief that the Zapruder Doctrine was, at least on its face, applicable to
the client's project), and then make sure my distributor agreed to pick up
any legal costs if a suit were brought against the film for copyright
infringement.


>
> --
> Larry Jandro
> Video Engineering & Equipment Rentals
> Scottsdale, Arizona, USA
> [Remove spamtrap in ALLCAPS to reply]

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