Full legal opinion available on request
Pursuant to your request, we have reviewed the film and correspondence related to the short documentary film currently entitled In The Land of the Free (the “Documentary”) and have assessed the potential risks arising from the fair use of copyrighted, third-party material in the Documentary. In the context of the Documentary, excluding any licenses for interviews, music and locations, which were to be obtained by the producer, the use of the material is transformative, and we do not anticipate that any viable copyright-infringement claim could be asserted in the United States based on the Documentary. We also are confident that the Documentary does not give rise to any viable trademark claim under U.S. law.
In forming our final opinion, we received and reviewed, inter alia, the following items:
1. The trademark and clearance log dated April 2021 attached hereto (“Exhibit A”); and
2. The video file of the Documentary received April 2021.
The legal issues we have considered include:
Copyright and Fair Use
The Documentary investigates and examines the legal hunting of endangered species by the group entitled Safari Club International (“Safari Club”) that perpetuates this hobby and questions the morality of this practice. Throughout the Documentary, there is a look at the history and events of this type of hunting and the selling of endangered species, which is analogous to the Documentary’s narrative. Thus, the Documentary contains several clips of news, individuals and trademarked logos or information, as well as third party materials, (collectively, the “Materials”) described below, in order to accurately depict the story and the historical facts of this concept.
To fully explore this concept and the groups and individuals at the base of this story, the usage of these trademarks, photographs and images is mandatory and there is no other way one could highlight their points without utilizing certain clips to portray the story.
There is a strong use argument for incorporating these Materials into the Documentary. The usage of the Materials epitomizes the meaning of the “fair use” doctrine. The relevant case law strongly supports the application of the fair use doctrine to documentary filmmaking. The Court in Hofheinz v. Discovery Communications, Inc. expressly stated, “[d]ocumentaries and biographies fall within the protected categories of section 107 and are entitled to the presumption that the use of the copyrighted materials is fair.” Also See, e.g., Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 607-610 (2nd Cir. 2006) (finding fair use where the owner of the copyright in several Grateful Dead concert posters sued the publisher of a Grateful Dead biography that reproduced the posters as part of a timeline about the band’s career; whether the posters directly “enhance the reader’s understanding of the biographical text” or simply “serve as historical artifacts graphically representing the fact of significant Grateful Dead concert events,” the court held that “both types of uses fulfill [the defendant’s] transformative purpose of enhancing the biographical information”); SOFA Entertainment v. Dodger Prods., 709 F.3d 1273, 1278-1279 (9th Cir. 2013) (holding that the unauthorized use of a short clip from The Ed Sullivan Show in Jersey Boys, a musical about the band The Four Seasons, was “undoubtedly” a fair use; the defendant used the clip from the iconic 1960s television show “to mark an important moment in the band’s career. By using [the clip] as a biographical anchor, Dodger put the clip to its own transformative ends”); Calkins v. Playboy Enterprises, 561 F. Supp. 2d 1136, 1141 (E.D. Cal. 2008) (finding fair use where a magazine used photos of a model from her high-school years in a profile informing readers about her background).