Intellectual Property

Cosby Show Producers Claim Copyright Infringement In Documentary Covering Rape Allegations Against Bill Cosby

Despite the allegations by the production company, the use of these clips is clearly transformative and a textbook example of fair use.

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Bill Cosby (Photo by Spencer Platt/Getty)

Earlier this year, Bill Cosby’s rape trial ended in a mistrial after a jury deadlocked. Just prior to the trial, BBC aired a documentary the rape allegations against Bill Cosby and was subsequently sued by the company that produced The Cosby Show. The hour-long documentary, Bill Cosby—Fall of an American Icon, included several clips and two musical cues from The Cosby Show.

Seven of the eight clips in question range from 7 to 23 seconds, with the eighth clip lasting 51 seconds. The total length of the clips and musical cues amounted to 234 seconds. Just 234 seconds out of an hour-long film, yet the producers of The Cosby Show are claiming that those short clips — each representing mere seconds in length — could not have been used without permissions and licensing fees.

Despite the allegations by the production company, the use of these clips is clearly transformative and a textbook example of fair use. Although the complaint alleges that the documentary used these clips because it “would appeal to viewers,” the clips serve a completely different function from the original. The Cosby Show was intended to entertain as a comedy show. No one who had an interest in actually seeing The Cosby Show as a comedy TV program would seek out the 234 seconds worth of total clips in the documentary.

As to whether the documentary should have used any clips from The Cosby Show — the production company has argued that the documentary could and should have been made without them — they would seem highly relevant. The reason why this story got so much attention — much more than for most of the other 321,500 annual victims of rape and sexual assault — is because Bill Cosby is famous because of his starring role on The Cosby Show. Reminding the audience of who Bill Cosby is and why he is famous is an integral part of the story. Someone who grew up watching The Cosby Show would likely be transported back in time when hearing the familiar musical cues on the show, or watching a clip of a Bill Cosby uttering a famous line, and might more fully appreciate his fall as an “American icon.” For those who aren’t familiar with the show, the clips provide a glimpse into The Cosby Show and provide some context for the household name.

It is not even certain that The Cosby Show would have licensed clips for the use of the documentary if the filmmakers had asked for permissions. After all, the production company likely has no interest in having its footage aired in connection with accusations that Cosby raped and assaulted women, even if a documentary filmmaker was willing to pay a license fee. In this way, fair use protects freedom of speech by preventing a copyright owner from using intellectual property to silence critics.

The clips are short, with the longest one not even lasting a minute, a mere fraction of each episode’s length. Nor do the clips compete with any market for the show, assuming that there even is a viable market since the allegations came to light. It is no longer available for streaming in Hulu and also not available on other sites, like Netflix or Amazon Prime. At least in my local market, TV Guide does not list any upcoming airings of the show.

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Significantly, the clips used in the documentary serve a completely different purpose from the original. Instead of being used simply to provide comedy or entertain as a fictional show, the documentary provides a commentary on a public figure. The Cosby Show, like almost any popular television show, shows its stars in a positive light. The documentary, in contrast, serves to show a fall from grace and shed light on a newsworthy item. Ensuring that documentary filmmakers can use relevant portions of copyrighted works to enhance their storytelling, provide greater context, or serve as point for commentary or criticism allows for a completely transformative and new use. Documentary filmmakers have long used clips from other sources to demonstrate historical, cultural, or other points.

Bill Cosby, of course, is just one in what has been a long line of recent revelations of well-known Hollywood stars, producers, journalists, and politicians accused of sexual crimes. Potential future documentaries — for example on Kevin Spacey or Charlie Rose or Al Franken — may well need to rely on the inclusion of clips — for example, from American Beauty, 60 Minutes, or an SNL clip, to make points that create deeper meaning and understanding for the audience. Fortunately, fair use allows such inclusion, even where the rightholder to a particular clip may not want to license their work in a film that shows the subject in a negative light.

Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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