A Louse In The Mouse House: Michael Jackson’s Estate Swings From The Rip In Copyright Case

Don those Mickey or Minnie ears, as this will be one to watch.

Hell hath no fury like a pop artist’s estate scorned. The companies overseeing the intellectual property rights left behind by the late, great Michael Jackson — MJJ Productions, Optimum Productions, and others comprising the Jackson Estate, recently unleashed the fury on a production company that used MJ’s music and footage in a film without consent.

The case is notable not only because the Be-Gloved One is the plaintiff, but because of the identify of the defendant. In a rare turning of the tables, the content overlords at Disney find themselves on the wrong side of the versus here, accused of copyright infringement and other acts of misconduct. In a blistering complaint, Jackson’s Estate alleges that a louse in the House of Mouse obtained and copied MJ’s music and film without permission.

The facts are not particularly complex: Disney aired a “prime-time two-hour television program, The Last Days of Michael Jackson,” on its ABC network. The problem with this airing, aside from the program being “simply a mediocre look back at Michael Jackson’s life and entertainment career,” as per the complaint, was that it incorporated no less than 30 of Mr. Jackson’s copyrighted works, including songs like “Billy Jean” and “Beat it,” music videos such as “Thriller” and “Black & White,” and other film and video footage. And Disney obtained and exploited all of this content without even notifying the Estate, let alone obtaining its consent.

Disney, remarkably, attempts to explain all of this away by relying on the old fair use excuse, arguing that it was free to use 30 of MJ’s work without obtaining consent or paying license fees because the unauthorized usage was a fair usage. As the complaint notes, “Disney’s newfound position is that any uses of copyrighted works in ‘documentaries’ is a fair use—presumably, so long as the copyrights are not Disney’s.”

This case exposes the flaws in the fair-use defense when applied to documentary films. Cases distinguish between “entertainment films” and “documentary films” and often find the latter transformative when taken from the former. And, courts find that “documentary films” as opposed to “entertainment films” tend to fall within Section 107 of the Copyright Act’s list of fair uses as “criticism, comment, news reporting, scholarship, or research.”

But, “documentary films” are just as likely to be pure entertainment as “entertainment films,” and it is unclear why documentaries should presumptively have the right to exploit third-party content without consent simply due to their genre. While some documentary films truly set out to educate the public, others seek more to entertain than inform.

This is particularly true for documentaries that air in prime time on major networks, are studded with advertisements, and exploit the fame (and often the infamy) of a celebrity. The primary intent behind such a documentary is to make money, not to educate the public.

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Jackson’s Estate, driving this point home, quotes from a Rolling Stones article, which states that Disney’s documentary program “offer[s] little in the way of new revelations or reporting and at times seems heavy on armchair psychoanalysis and unsupported conjecture” and calls even that pan too generous. In other words, Disney has not taken MJ’s content in order to provide support for its insightful criticism, content, or news reporting. It has taken MJ’s content to sell advertising.

Disney, for its part, is really laying it on in defense, advising the Court in its answer to the complaint that its copying of Jackson’s content is not only fair use but “free speech under the First Amendment,” and provides “historical context and explanation tracing the arc and aspects of Jackson’s life and career.”

Disney goes on to call Jackson’s Estate an “overzealous copyright holder,” which is pretty rich given Disney’s history in the content wars. The Jackson Estate emphasizes as much in its complaint, noting the irony of Disney’s fair use claim and umbrage at the Jackson Estate’s attempt to protect its copyrights given that “Disney once sued a couple on public assistance for $1 million when they appeared at children’s parties dressed as an orange tiger and a blue donkey. Apparently, these costumes cut too close to Tigger and Eeyore for Disney’s tastes.”

Suffice it to say, Disney has never been shy about emphasizing the value of its copyrights and taking action against those who have copied their work without permission. But, here, Disney takes another approach — minimizing the value of original music and film footage in an attempt to evade liability (and avoid paying fees) — to copyright and comes out looking less than princely. Disney certainly could have reached into its coffers and paid license fees to the Jackson Estate to broadcast the material that forms a substantive part of its prime-time program without breaking or even bending the bank. Yet, it knowingly exploited that material without license and is now facing a highly public lawsuit accusing it of lacking respect for the copyrights, the very material on which it has built its empire. Don those Mickey or Minnie ears, as this will be one to watch.


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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.