Should Michael Jackson’s creative work be utilized under the “Faire use” Doctrine?
On May 24, 2018 Michael Jackson’s Estate sues the Walt Disney Company, a Delaware corporation, ABC, INC., “Disney”. over the airing of a documentary on its prime time titled the last Day of Michael Jackson.The Estate, alleged that Disney is not authorized, sponsored or approved to use the Michael Jackson’s property for its own benefit for free. The complaint specifically stated that “ …Unable to make a compelling presentation about Michael Jackson on its own, Disney decided to exploit the Jackson Estate’s intellectual property without permission or obtaining a license for its use. After all, there is always a healthy audience for Michael Jackson’s timeless music, his ground-breaking videos, and footage of his unforgettable live performances. Why not just use Michael Jackson’s works if one can get advertisers to buy time on the program?”
Throughout history, as the Plaintiff highlighted in their complaint, Disney, has been very protective when it comes to its own property, and in many occasions Disney was not hesitant to sue to protect its unique image in the world of intellectual property. For example, Disney has made threat to small independent childcare centers for using the image of Michey Mouse and Donald Duck on their properties. Disney, literally coerced them to remove all the images otherwise they face a serious allegations. In another scenario, Disney was not reluctant to sue a couple who were on public assistance for $ 1million because they showed up to parties dress up as an orange tiger and blue donkey. More interesting, couple of years back Disney sent a request to Facebook, Twitter, and other websites asking them to stop their users from posting pictures of New Star Warstoys that these consumers had legally bought. Disney’s argument there is that amateur photographs of Star Warsin toys infringed Disney’s copyrights and were not a “fair use”.
In this case, Jackson’s Estate, alleged that Disney used over thirty different copyrighted works that Michael Jackson’s Estate owns. During its documentary Disney broadcasted, without permission form the Estate, Michael Jackson’s most famous music songs such as Billie Jean, Beat It, Don’t Stop, The documentary also broadcasted music videos often referred to by Michael as “Short films”. Michael Jackson’s Estate seems to be offended by the fact that Disney was not able to formulate a compelling presentation about Michael Jackson’ “last day” on its own, and instead reverted to the exploitation of the Jackson Estate’s without a consent from the latter. On that basis the Estate is asking the court for relief for the following claims: Copyright infringement of Michael Jackson’s sound recordings, musical compositions, audiovisual works.
The Attorneys at Disney are refusing to discuss the issue more clearly and all what they have been saying is that: “ABC News’ documentary explores the life, career and legacy of Michael Jackson, who remains of great interest to people worldwide. The program does not infringe on his estate’s rights, but as a courtesy, we removed a specific image from the promotional material.” https://deadline.com/2018/05/michael-jackson-estate-abc-special-didnt-secure-rights-last-days-of-michael-jackson-1202396828/.
Based on previous case laws, it is not impossible for Disney to use the doctrine of “fair use” and to argue that its use of Michael Jackson’s work is fair use and it does not rise to the level of infringement. I am not sure if that defense will be successful since the Plaintiff was very substantive in showing with clear examples how Disney at all times showed a high level of protection of its own property. Star Warsmaterial owned by Disney is good example illustrated by the Plaintiff. Case law have always stated that if a documentary constitute a collection of realities it would be considered fair use, however, in the instant case Michael Jackson’s creative music and short films are at stake.
It would be interesting to see how the court will rule on this case, or even more interesting how the jury will react to such allegations since the Plaintiff requested a jury trial.