Fair Use and Reality TV
The lines between reality television, documentaries, and scripted television are fairly clear. However, it is much more difficult to draw the line between reality and unscripted television. Moreover, a multitude of sub-genres further complicates the issue of whether fair use is applicable to reality TV. Nevertheless, one thing remains clear: documentaries are a prime example of where fair use often resides.
What is fair use?
Simply put, fair use is a defense against copyright infringement that makes it okay for a person to copy small parts of something another person has created. Absent fair use, this conduct is typically unlawful. Think of it this way: fair use is the reason why you can write criticisms or comments about books that you have read in your English classes. Without fair use, simply quoting excerpts from Harper Lee’s To Kill a Mockingbird would subject English students to potential copyright infringement claims.
There are four factors to consider in a fair use analysis: 1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, 2) the nature of the copyrighted work, 3) the amount of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work. But how might this fair use defense apply to reality (and unscripted) TV?
Reality v. Unscripted Television and the Sub-Genres
Let’s first distinguish between reality and unscripted TV; after all, there is a difference, isn’t there? The words “reality TV” usually evoke thoughts of shows like “Big Brother,” “The Real World,” “The Bachlorette,” “Survivor,” and the like. But there is a subtle difference between the “reality TV” moniker as applied to these shows, and “unscripted television”. As one author eloquently puts it:
“If you feel like a voyeur, need to take a shower, or worry about the sorry state of humankind after watching it, that’s reality television. If you were entertained without abject, crippling shame (“American Idol,” “Dancing With the Stars”) or you learned something – even if it came while watching guys blow stuff up on “MythBusters” – then it’s probably an acceptable form of unscripted television.”
This would place documentaries and true crime TV shows such as “Snapped” or “The First 48” in the realm of unscripted television, and it would place non-recyclable trash like “Jersey Shore” and “The Bachlorette” in the realm of reality TV (sorry to offend some of you Jersey Shorians and hopeless romantics). But within these two broad categories are more subject-specific sub-genres. Various film and TV entertainment scholars have broken down these categories in different ways, but perhaps the most effective categorization is as follows: romance (“The Bachelor”), crime (“Cops”), informational (“Myth Busters”), reality-drama (“Intervention”), competition/game (“Survivor”), and talent (“American Idol”).
Licensing and Clearance
When fair use is inapplicable, the producers of reality and unscripted TV shows must acquire licenses and clearances for any copyrighted (or trademarked) material that is featured in the shows. Keith Relkin, a Rights and Clearance Administrator for Walt Disney Pictures, compiled the “Top Ten Clearance Guidelines” for studios to keep in mind when producing, shooting, and editing shows. One guideline is to “lose the [incidental background] music,” to avoid paying large sums of money to license the relevant copyrights. Another is to avoid including trademark logos and copyrighted posters in scenes because they also require licenses to avoid infringement. The list goes on, but what separates documentaries from many reality TV shows is the fact that fair use will most often exempt documentary filmmakers from having to acquire these licenses.
For example, the Documentary Filmmakers’ Best Practices Manual states that copyrighted media content incidentally captured in the process of filming something else is a common occurrence for documentarians, and that fair use would almost always apply in such situations. For example, if a documentary incidentally captured background music while filming a scene, the filmmaker would likely not need to worry about licensing and clearance issues. However, there is no reason why the same cannot be true of certain reality/unscripted TV shows. After all, there is little (if any) meaningful difference between crime shows such as “Snapped” and a crime documentary about Ted Bundy. An application of the fair use factors and relevant case law should thus demonstrate that fair use is equally applicable to certain reality/unscripted TV shows.
Case Law Involving Documentaries and Fair Use
Fair use is friendly to documentaries because they mesh well with the fair use factors. In Monster Communications v. Turner Broadcasting System, Inc., the producers of a movie about the 1974 Muhammad Ali-George Foreman heavyweight title fight brought a copyright infringement action against the makers of Ali—The Whole Story (“Story”), a television documentary about Muhammad Ali. The plaintiffs alleged that their copyright in the movie was infringed by the documentary, which contained between 9-14 film clips taken directly from the movie. The court found fair use applicable.
Regarding the first factor, the court held that the allegedly infringing work is a biography that, despite being commercial in nature, undeniably constitutes a combination of comment, criticism, scholarship and research, all of which support fair use. Moreover, Ali’s importance as “a figure of legitimate public concern” made the biography a subject of public interest.
The second factor was deemed neutral because even though the underlying copyrighted work consisted of creative works (e.g., images) worthy of protection as fanciful creations, “[t]here is a public interest in receiving information concerning the world in which we live. The more newsworthy the person or event depicted, the greater the concern that too narrow a view of the fair use defense will deprive the public of significant information.”
Since the allegedly infringing portions of the documentary consisted of 9-14 clips and totaled between 41 seconds to 2 minutes of the underlying copyrighted work, the infringement was deemed nominal. Also, the footage used in the documentary was not its focal point, as the two works were markedly different. The movie from which the footage was taken focused on one Muhammad Ali fight and its historical importance, whereas the documentary functioned as a biography of Ali’s entire life. All of this supported a fair use defense.
With respect to the fourth factor, the court decided that exposure to the TV documentary’s allegedly infringing footage was unlikely to have an adverse effect on the market for the movie. All of this weighed heavily in the court’s finding of fair use.
The fact that this case dealt with a TV documentary is significant because many unscripted television shows such as VH1’s “Behind the Music” and Investigation Discovery’s “Solved” are analogous in nature. “Behind the Music” documents famous musicians’ lives. “Solved” is a crime show that documents famous and historical murders, and explains to viewers how investigators were able to solve the cases and capture the murderers. We have already covered how fair use might apply to incidentally captured footage in reality TV shows, but these unscripted TV shows are also fit for fair use because they often utilize music video footage, live concert footage, news excerpts, courtroom footage, police interrogations, and the like.
Applying the Law to Reality and Unscripted Television
With regards to the nature and the purpose of the underlying work, always ask whether the new work “supersedes” the original, or instead adds something new with a further purpose or different character. If the copyrighted work is used “but transformed into the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.” For the same reasons mentioned above in the Muhammad Ali documentary case, this would make uses by informational TV shows, such as “Behind the Music,” transformative in nature. If a documentary about Michael Jackson were to use footage from one of his music videos or his famous interview with Barbara Walters, fair use should apply use because it does not replace the original works. It instead transforms them. A ten-second clip from the “Billie Jean” music video, for example, can transform the original copyrighted work, which was created for entertainment purposes, into a documentarian’s tool for illustrating Michael Jackson’s unrivaled, iconic dancing skills. Similarly, an excerpt from the Barbara Walters interview, which was limited in scope to Jackson’s views on Princess Diana’s death, the paparazzi, and his son’s future, can be transformed into a brief illustration of Jackson’s sensitivity and the difficulties he endured due to negative publicity by the media.
The same can be said of news excerpts, which are often used in crime TV shows such as “Solved”. In Los Angeles News Service v. CBS Broadcasting, Inc., the court analyzed the allegedly unlawful use of videotaped news footage depicting a Los Angeles riot and the beating of a truck driver. The footage was originally captured and copyrighted by Los Angeles News Service, Inc. (“LANS”). Court TV later used this footage in its TV show, “Prime Time Justice.” The court refused to find fair use for some of the footage that was merely extracted and rebroadcast because it did nothing to transform the original (informational) purpose of the videotaped content. Furthermore, LANS and Court TV were both news sources competing directly against each other. However, the court did find fair use for footage used in the TV show’s opening montage. The court reasoned that, in this context, various effects and other elements of creativity beyond mere republication transformed the footage and served a purpose other than newsworthiness.
Applying this to crime TV shows such as “Solved”, the first fair use factor is satisfied. Unlike the aforementioned case, which dealt with competing news sources, “Solved” does not compete with the news stations from which it often derives its footage. The purpose of incorporating these excerpts into the show is not newsworthiness, but rather to enhance the viewer’s learning experience by showing still photos (such as mug shots) or chilling video footage of the murderers being arrested or sitting in court. The fact that these shows are intended for profit should not make fair use any less applicable because the recent judicial trend has been to give less weight to the fact that a particular use is for commercial gain.
The nature of the copyrighted works used in reality and unscripted TV shows will vary based on the type of show. The more creative the primary work that is being used, and the more time and labor invested in the work, the more protection it should be accorded from copying. As such, fictional works are worthier of copyright protection and less likely to be the subject of fair use than factual works. News footage used in crime TV shows will therefore receive less protection and will be given broader fair use coverage than excerpts of music videos in a musician’s documentary. This alone, however, will not necessarily preclude a finding of fair use because of the importance of disseminating knowledge.
The amount and substantiality of the copyrighted material used will also vary depending on the type of TV show. Since most reality and unscripted TV shows that use copyrighted materials are like documentaries, the amount of content used is generally very small. For example, the news footage used in “Solved” typically consists of a 5-second clip depicting the murderer being brought into court in handcuffs. Music video excerpts used in “Behind the Music” are typically between 8-20 seconds (at most). Such minimal uses have been deemed insufficient to preclude a finding of fair use. These types of documentary-esque shows typically take no more than necessary to convey or illustrate a point. Even when footage is incidentally captured in reality shows like “Jersey Shore”, the barely-visible poster in the background or the faint U2 music is probably not a substantial use.
The fourth factor turns on whether the allegedly infringing use competes with the original by providing a substitute or supplanting the demand for the copyrighted work. Courts have deemed this factor to be the most important in a fair use analysis, and they weigh the first three factors together in resolving this issue. The use of copyrighted material by these reality and unscripted TV shows will generally have a de minimis effect on the markets for the copyrighted works (if any effect at all). Like most documentaries, the TV shows to which fair use applies do not use enough of the original works to supersede them and thereby undercut their markets. Somebody who sees a 10-second clip of the “Billie Jean” music video in Michael Jackson’s “Behind the Music” documentary will not be dissuaded from watching the full music video. Likewise, a viewer will still have the incentive to listen to the full copyrighted version of a U2 song after hearing an incidentally captured excerpt of it in a reality TV show. Hearing the excerpt might even encourage the viewer to seek the full version.
Since reality and unscripted TV shows that incorporate other copyrighted works are generally transformative in nature, and since they use very small amounts of the copyrighted works, it follows that these shows do not adversely affect the markets for the original works. Therefore, shows like “Solved” and “Behind the Music” are like documentaries and should qualify for fair use. Though reality TV shows are generally less like documentaries, they too can qualify for fair use to the extent that any copyrighted material included is incidentally captured. The lack of any case law addressing fair use and TV shows attests to TV studios’ reluctance to clear copyrighted material without licenses. The ultimate question, then, is whether the studios are going to muster up the courage to clear these uses without licenses from the copyright owners. The answer to this question lies in the fair use defense.
 See 17 U.S.C.A. § 107 (West 2014).
 See Id. at 493-494.
 See e.g., Hofheinz v. AMC Productions, Inc., 147 F. Supp. 2d 127, 62 U.S.P.Q.2d 1091 (E.D. N.Y. 2001) (rejecting plaintiff’s sought-after injunction and finding fair use because, “while plaintiff’s copyrighted movies aimed to entertain their audience, [the] defendant’s documentary aims to educate the viewing public of the impact that Arkoff and Nicholson had on the movie industry.”).
 305 F.3d 924 (9th Cir. 2002)
 Id. at 939.
 See Film and Multimedia and the Law § 2:3.
 Id. at §2:4.
 See Monster Communications, Inc. v. Turner Broadcasting System, Inc., 935 F. Supp. 490, 491, 40 U.S.P.Q.2d 1259 (S.D. N.Y. 1996) (finding this factor neutral despite defendant’s use of creative works, because of the important public interest in learning about the world).
 See e.g., Hofheinz v. AMC Productions, Inc., 147 F. Supp. 2d 127, 62 U.S.P.Q.2d 1091 (E.D. N.Y. 2001) (weighing the third factor in favor of fair use because of the defendant’s “de minimis” use of five clips, ranging from 10 to 54 seconds, with an average length of 26 seconds).
 See Film and Multimedia and the Law § 2:6.