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Disney shouts ‘first amendment’ and ‘fair use’ in response to Michael Jackson estate’s copyright lawsuit

By | Published on Wednesday 15 August 2018

Michael Jackson

Disney has responded to a copyright lawsuit filed by the Michael Jackson estate over a programme its ABC subsidiary aired about the late king of pop.

Back in May¬†the estate went to court in LA with a long list of complaints about the ABC show ‘The Last Days Of Michael Jackson’, which – its lawyers argued – made use of lots of copyright material owned by the estate without permission. The estate’s litigation also pointed out Disney’s long history of enforcing its own intellectual property rights.

But, as expected, Disney is citing both the US Constitution’s First Amendment and the principle of fair use in its defence, arguing that it was well within its rights to make use of clips of Jackson’s music and videos in its documentary without licensing that material from its owners. Which is to say, it reckons that free speech provisions and copyright exceptions mean news organisations and documentary makers can use clips of this kind without getting permission from any copyright owners.

In its legal filing, Disney states: “This case is about the right of free speech under the First Amendment, the doctrine of fair use under the Copyright Act, and the ability of news organisations to use limited excerpts of copyrighted works – here, in most instances well less than 1% of the works – for the purpose of reporting on, commenting on, teaching about, and criticising well-known public figures of interest in biographical documentaries without fear of liability from overzealous copyright holders”.

It goes on: “ABC News used and incorporated short excerpts of some songs, music videos and other material featuring Jackson within a two-hour documentary entitled ‘The Last Days Of Michael Jackson’ for the purpose of providing historical context and explanation tracing the arc and aspects of Jackson’s life and career – precisely what is contemplated and permitted by the First Amendment. Plaintiffs’ lawsuit, in violation of these legal principles, constitutes an attempt to exercise unfettered control over public commentary and opinion on Jackson’s life and career”.

The estate’s lawsuit did always seem somewhat optimistic and Disney’s defences are exactly what we expected to see bounced back in return. It will be interesting to see how the estate now responds.



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