For those of us who have ditched cable TV, ABC recently aired a special titled “The Last Days of Michael Jackson” on May 24, 2018 during its prime-time hour. While the documentary met its goal of exploring the life and legacy left behind by the “King of Pop,” a suit filed by Michael Jackson’s estate alleges that the documentary used too much of Jackson’s music, videos, and live performance footage without obtaining the requisite license from his Estate.
Michael Jackson’s estate is comprised of various companies including MJJ Productions, Inc., The Michael Jackson Company, LLC, and more. The defendants listed in this case include not only ABC, but the Walt Disney Company (as the owner of ABC.) Throughout the complaint, Disney is directly targeted as the main defendant.
The complaint is not only a scathing review of “The Last Days of Michael Jackson,” (which, according to the Estate, is a “mediocre look back at Michael Jackson’s life and entertainment career”), but it is an admittedly strong assertion that Disney exploited intellectual property owned by the Estate without gaining permission or license for the use thereof. It stated that regardless of its communications with Disney’s general counsel following its discovery of the program (which was allegedly a mere two days before it aired), Disney infringed on the rights of the Estate by using, in substantial quantity, various forms of its intellectual property.
The complaint cites over thirty instances of Disney utilizing the Estate’s copyrighted works without permission, including substantial portions of recorded songs as Billie Jean, Beat It, and Don’t Stop ‘Til You Get Enough; extensive clips of music videos; parts of various video productions (including behind-the scenes materials); concert footage; and clips taken from the Estate’s film, This Is It. Additionally, the Estate claims that Disney wrongfully utilized other copyrighted footage that is owned by the Estate but had never previously been exploited for commercial gain. For example, Disney utilized footage of Michael Jackson’s child making heartfelt remarks at his memorial service. The Estate owns the copyright in this footage, but has never authorized a license for its commercial use.
Not only are the Estate’s assertions supported by evidence of its ownership of the material used by Disney, but the assertions are emotionally charged. In reading the complaint, it feels as if the Estate has not just been legally wronged by Disney’s actions, but is personally offended by Disney’s unauthorized use of its intellectual property. For example, the complaint reads that “for some reason, Disney decided it could just use the Estate’s most valuable intellectual property for free. Apparently, Disney’s passion for copyright law disappears when it doesn’t involve its own intellectual property and it sees an opportunity to profit off of someone else’s intellectual property without permission or payment.”
We are well aware that Disney is serious when it comes to the protection of its own intellectual property rights. In pointing out the irony of the situation at hand, Jackson’s Estate stated that “Disney has never been shy about protecting its intellectual property. Indeed, its zeal to protect its own intellectual property from infringements, real or imagined, often knows no bounds.”
It is possible that Disney could try to argue that its use of the property owned by the Estate is fair use, a claim that the internet loves to abuse as a response to any intellectual property-related problem. Unfortunately, the fair use defense probably would not work out for Disney. The Estate illustrated its point by example, hypothesizing the negative reaction that Disney would have to a third-party’s attempt to make a Star Wars documentary without obtaining permission from Disney itself to use extensive clips of the Star Wars material owned by Disney such as film footage, interviews, music, and so forth. This wouldn’t be surprising in light of Disney’s past protection of its intellectual property rights, but it’s simply a hypothetical example that the Estate tries to draw which makes the argument somewhat less convincing.
In short, the fact that an end product is a documentary (which may be for educational purposes or may be considered a compilation under the fair use doctrine) does not immediately allow for the substantial use of copyrighted material therein and does not automatically make it fair use. Case law tells us that if the documentary was a compilation of facts it can be fair use, but much of the creative aspects of Jackson’s work was used (such as his videos, his music, and recordings of his performances). Additionally, the fair use defense asserting that “The Last Days of Michael Jackson” was purely educational is weak too, as this protection is meant for teachers and libraries- not for ABC prime-time television. While the Estate requested a jury trial on the matter, we’ll have to wait and see how this one comes out.
Author and intern supreme, Caroline Womack, is a rising 3L at Quinnipiac University School of Law and primarily studies intellectual property law, focusing on video game and internet law.