Beyonce made waves last month when she debuted her new video, “Formation,” but the less-hyped issues of copyright infringement, licensing and fair use are equally important to the chatter. Artists can use this example as a bargaining tool when they’ve found that their work is being used without express permission.
What is Fair Use?
Beyonce’s Formation is a meditation on black rights in an era where black men and women are still significantly disadvantaged and profiled simply for the color of their skin. Set in post-Katrin New Orleans, Beyonce is seen singing from atop a sunken police car. Images of destruction splatter the screen while Beyonce visits antebellum-era plantation homes and urban New Orleans boutiques. The iconic pop star used the weight of her persona to blast the audience with serious racial issues, all while looking fabulous doing it: clothed by Gucci and decked in no less than seven costume changes, Beyonce shocked audiences and sent the internet abuzz.
But there turned out to be more controversy than meets the eye when a documentary filmmaker took to social media to accuse Beyonce of illegally using his content as footage for scenes of the video. Los Angeles-based filmmaker Chris Black took to Twitter to accuse Beyonce of using footage from his documentary film, That B.E.A.T., a film about the “Bounce” scene in New Orleans, without a license and without crediting the audience. The news set the Twitter world aflame: devoted Bey followers were quick to criticize Black, saying he should be thrilled the international icon even noticed his work, while others were stunned and offended that Beyonce’s team – who likely had deep pockets with which to produce this film – would overlook the importance of crediting and properly compensating the filmmaker for his work.
Within a week, Beyonce’s camp acknowledged that the footage had in fact been licensed and paid for, but Black says it’s not entirely what it may seem: He was only contacted by Beyonce’s people after it became clear that they had used his footage without permission. Curiously, Black doesn’t even own the rights to the video: that belongs to Nokia and Sundance, who commissioned the video for its 2013 festival.
From taking one look at the video and contrasting it with scenes from Beyonce’s Formation, it’s pretty apparent that the singer did, in fact, borrow the footage for her own artistic work. Without permission, Beyonce’s use of the footage would amount to copyright infringement since she didn’t seek permission to use the work. That would expose Queen Bey to a copyright infringement lawsuit, and when your coffers are as deep as Beyonce’s, you would think that kind of liability is something to be worried about. But Beyonce – and really, anyone who wants to take artistic, copyrighted work product without permission – can often skirt the issue by arguing that it was fair use. And when you’re as big as Beyonce, taking work and recognizing it later becomes a strategy for minimizing the amount of money you have to pay up front, without having to ask for express permission. As an artist, it’s important you’re aware of these practices.
We know that copyright infringement occurs when an individual uses copyrighted material without express permission from the creator of the work. But there are exceptions that would shield an infringer from liability, and allow the infringer to use the work without express permission and without being liable for any damages. In Beyonce’s case, it seems the fair use doctrine may have come into play.
The fair use doctrine is outlined by U.S. copyright laws, and the U.S. Copyright Office has even created a Fair Use Index of the overwhelming case law on the subject. Courts tend to measure fair use by these four prongs:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
While these guidelines may seem a little complex, they actually provide a bright line rule for adhering to copyright law when appropriating content as your own.
As we’ve outlined in our e-book, fair use comes into play in various scenarios in which a work may be excused from copyright infringement liability because the use of the copyrighted material can be considered fair use. Andy Warhol’s use of the soup can, for example, is fair use because his work was transformative of the original intention with which the product was created. Conversely, CBS’s use of clips from a Charlie Chaplin film on the day of his death was NOT fair use, because the network used a substantial portion (a minute and 15 seconds) and the clips really captured the “heart” of the film. Similarly, courts tend to be particularly strict on whether or not something constitutes fair use based on whether or not the work was used for commercial purposes. Generally speaking, the courts won’t allow someone to profit from someone else’s creative work product without ensuring that the original creator is adequately compensated.
Applying Fair Use to Beyonce’s Formation
Based on what we know about fair use, it seems like it would be a stretch for Beyonce’s team to claim that their infringement constitutes fair use. The work was most certainly used for commercial purposes, as it’s the headline track of her upcoming album and world tour. The nature of the work in question seems to have promulgated Beyonce’s own agenda of illustrating the hardships black citizens continue to face on a daily basis, particularly with New Orleans, a city that was famously let down in the aftermath of Hurricane Katrina. You may be able to argue that That B.E.A.T. was never about Beyonce’s “Black Lives Matter” agenda, but rather the Bounce culture of New Orleans – however the substantiality and portion of the work Beyonce used is significant enough that such a contention would be hard to prove. And with respect to the effect of the use on the market, if the work claiming fair use is so close to the original that people would no longer need to purchase the original work, claiming fair use will be more difficult. In this case, Beyonce’s Formation may ignite interest in the documentary, but it may not entice any potential viewers to purchase the film since so much footage is already on display for free within Beyonce’s music video.
If all that is true, then how would Beyonce get out of a lawsuit for using the infringing material in her music video?
Beyonce’s Legal Strategy Relies on Fair Use Defense
Consider a scenario in which Beyonce’s team had contacted the filmmaker and expressly requested a license for use of the work. The filmmakers know exactly how much Beyonce’s worth, and probably have a good idea of the video’s budget. As such, Beyonce’s use of the footage would come at a hefty price, and if Bey isn’t willing to pay, and decides to move forward anyway, then there’s definitely a lawsuit on their hands if they decide to use the footage anyway.
Instead, Beyonce’s people decide to use the footage and deal with the repercussions later. This strategy is far smarter because it gives Beyonce an opportunity to defend her use as “fair use” before the copyright holder, who would have to take his case to court if he wanted to argue against the fair use doctrine and recover damages for copyright infringement. And as we know, court costs and legal fees in copyright cases are often prohibitive, and Beyonce’s team will probably use that as leverage – they’ll likely get the original creator to settle rather than take their case to court, often at a fraction of the cost that they would spend initially.
As an artist who may find themselves in this situation, its important to know that the loser often pays attorney’s fees – so if you’re looking at a copyright infringement situation as blatant as the one here, it may be worth taking the fair use defense all the way to court.