This lawsuit against a Cosby rape documentary is why fair use exists [Updated]

The production company that made The Cosby Show has sued the BBC (.pdf) over a documentary the British network aired about the rape allegations against Bill Cosby. Carsey-Werner, the production company that is the plaintiff in the case, says that the documentary is infringing its copyright because it uses eight audiovisual clips and two musical cues from The Cosby Show.

The documentary, titled Bill Cosby—Fall of an American Icon, was broadcast on a BBC channel in the United Kingdom on June 5 of this year. That was the same day that Cosby's prosecution for one assault began in Pennsylvania. (The trial ended in a hung jury.) The UK production company that made the documentary, Sugar Films, is also named as a defendant in the case.

The complaint lists eight video clips that are used in the documentary. All are between seven and 23 seconds long, except for one clip that lasts 51 seconds.

Adding together the time that viewers are either seeing a clip or listening to one of the musical cues, lawyers for the plaintiff say that "the Infringed Works were either seen or heard (or both) in Fall for a total of 234 seconds," or a total of 6.5% of the hour-long documentary.

"[The defendants] have therefore sought to profit directly from the use of the copyrighted material without having to pay a license fee to Carsey-Werner by using the inherent entertainment value of The Cosby Show to entertain viewers."

The complaint suggests that viewers' attention could have been drawn to The Cosby Show "without using copyrighted material." Instead, defendants "deliberately used the Clips on 10 separate occasions, no doubt because they knew that showing such a large number of clips from this famous show would appeal to viewers."

After the first broadcast, Carsey-Werner sent notice via e-mail to both the BBC and Sugar Films that the material from The Cosby Show was unlicensed and constituted copyright infringement. The complaint states that the defendants each responded separately, denying liability. Carsey-Werner's general counsel didn't respond to a request for comment about the copyright lawsuit, which was reported earlier today by The Hollywood Reporter.

No surprise, the complaint contains no mention of "fair use," one of the limiting factors of copyright and one that's absolutely crucial for documentaries—especially ones that, like Fall, are highly critical of the copyrighted material.

I reached Carsey-Werner general counsel Norma Acland by telephone. Didn't she think fair use was an important factor for a documentary that was using such segments of the copyrighted material?

"Well, that will be for them to plead and the judge to decide," Acland said.

Acland wouldn't say what the range of prices would be to license clips from The Cosby Show legally. Prices, she said, are decided on a case-by-case basis.

When I suggested Carsey-Werner might decline to license any clips at all for a documentary about criminal allegations against Bill Cosby, Acland said the right to decline licensing is "one of the major parts of being a copyright owner, isn't it?"

Asked whether Carsey-Werner would have agreed to license clips for the documentary at all, Acland said, "I don't know the answer to that. But at least we would have had the choice, wouldn't we?"

I asked Acland if she was concerned about the possible implications on freedom of speech if copyright owners could stop documentarians from using television clips without permission and payment.

"I didn't realize you wanted to have a conversation about that," she said, declining to answer questions related to free speech.

Fair use follies

Based on the facts in the complaint, the BBC and Sugar Films would seem to have a strong case for fair use. They used very small snippets of several episodes, and the idea that a BBC documentary, which wasn't even broadcast in the US, "competes" with the licensing market for full episode reruns of The Cosby Show is a reach.

It's also hard to see how a proper documentary could or should be made about the Cosby rape allegations without using clips from the show. The TV show made Bill Cosby who he is. Even beyond Cosby the man, the show is a powerful cultural touchstone of its time period—considering its impact on race relations and many other issues.

But fair-use cases are expensive to defend, and documentary filmmakers don't often have the resources to push back. The problem of copyright threats against non-fiction filmmakers became so acute that at one point, Stanford University's Center for Internet and Society ran a documentary film program specifically geared to help filmmakers utilize fair use properly and mitigate litigation risk. Unfortunately, that program isn't ongoing, and the lesson doesn't seem to have stuck for some copyright owners.

Pirates watching pirates

Another quirk of this lawsuit is that it seems the BBC never even made the Cosby documentary available to US viewers. After the June UK broadcasts, Fall was available for 30 days on the BBC's iPlayer website, but the complaint states that it could be viewed in the US "by any person using 'Virtual Private Network' software"—in other words, only by viewers who hide their IP address and thus their location. The plaintiff also states that Fall was available on YouTube and "other video streaming websites," but all of those examples sound like pirated or unauthorized copies as well. Carsey-Werner's Acland wasn't aware of any authorized US distribution.

In other words, the only way US viewers could even watch this allegedly infringing documentary is by breaking copyright law themselves. The complaint tries to get around this jurisdiction problem by pointing to related events that happened in California, like how the documentarians interviewed 11 sources around the Sunset Strip and other famous locales in Los Angeles.

Unfortunately, fair use is a murky enough doctrine that copyright owners can often just push filmmakers into paying up. The BBC is a defendant with some resources and a long history of serious journalism. Hopefully, the network will step up to send a message that its journalists and documentarians won't be silenced by copyright allegations.

The BBC didn't immediately respond to an inquiry from Ars, and neither did Sugar Films, the UK company that made the documentary.

Update: "Bill Cosby—Fall of an American Icon was produced by Sugar Films Limited for the BBC," a BBC spokesperson said in a statement. "Fall has not been broadcast in the US. Sugar Films will be responding to the proceedings in due course."