Former American icon Bill Cosby has been accused of sexually assaulting at least sixty women over five decades, according to Time Magazine. But the Carsey-Werner Company, which produced Cosby’s hit sitcom “The Cosby Show”, claims the program still has “inherent entertainment value” that the British Broadcasting Corporation (BBC) wrongfully capitalized when it used eight clips and music from the show in its documentary “Bill Cosby – Fall of an American Icon.” Carsey-Werner filed for copyright infringement in the U.S. District Court for the Central District of California last Friday.
Of the documentary’s one hour of running time, Carsey-Werner alleges that 234 seconds, or 6.5%, of the content derives from “The Cosby Show,” which the BBC had no permission to use. But permission is not necessary if the use was fair. When determining fair use, the court considers 1) whether the unlicensed use of the original work transformed the material taken by using it for a different purpose; 2) the nature of the copyrighted work; 3) the amount and substantiality of the work taken; and 4) the effect of the use on the potential market for the original work.
As to the first factor, use of material for purposes of criticism and comment is recognized by statute as transformative and fair. Carsey-Werner could argue the documentary pertains to Bill Cosby and offers no comment or criticism of “The Cosby Show,” but the BBC could claim the program is arguably what made Cosby a household name and, ironically, branded him as “America’s Dad.”
The second factor tends to be the least important in the analysis since most copyrighted works are inherently original, but this prong would favor Carsey-Werner as fictional works like “The Cosby Show” are judged to be more original than factual ones such as an autobiography or news report.
The third factor comes down to whether the BBC used more of “The Cosby Show” than what was reasonable to adequately document Cosby’s descent. Carsey-Werner claims if the BBC wanted to draw “The Cosby Show” to the viewers’ attention, it could have done so without using copyrighted material, but the BBC could argue its use of less than four minutes of show content scattered throughout the documentary was more than reasonable given the pivotal role the program played in building Cosby’s legacy.
The fourth factor requires Carsey-Werner to prove the BBC’s documentary served as a market substitute of the “The Cosby Show,” which will be a tall hill to climb given that the market for the program has arguably been irreversibly damaged amidst Cosby’s scandal. Plus, the BBC can contend the market for light-hearted sitcoms is entirely different than that for sobering documentaries.
The BBC has yet to file a formal response to the matter but could pursue a shortcut to dismissal since the documentary was never broadcast or made publicly available online in the United States. The documentary aired just twice in June of 2017 and has not been broadcast since.
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