It seems like every time I turn around, there’s a new documentary or biopic, giving the world an inside look at the good, the bad, and the ugly about a famous—or in some cases, infamous—recording artist. One of the latest among those documentaries, Drake: Re-Writing the Rules, centers around the rise of the multi-platinum, Grammy award winning rapper (and singer) Drake.
If you have no idea what documentary I’m talking about, don’t worry, you’re in good company. Shortly after the film’s release on Netflix, iTunes, and Amazon, Universal Music Group (UMG) issued DMCA takedown notices claiming that the documentary used unauthorized music and video clips, in violation of copyright law. For those unfamiliar with the DMCA (Digital Millennium Copyright Act), it’s a provision in the Copyright Act that allows a copyright owner who discovers infringement online to send a notice to the website or platform—in this case Netflix, iTunes, and Amazon—and in turn, legitimate sites will usually remove the material (but not always). Accordingly, the sites did comply, and removed the documentary just days after its release. In other words, if you’re reading this, it’s too late.
But the story doesn’t end there. Last week, Symettrica Entertainment—the UK company behind the documentary—filed a lawsuit in a California federal court claiming that UMG, under direction from Drake himself (although he is not a party in the suit), “intentionally misused the takedown process to silence and suppress viewpoints and speech in the [d]ocumentary with which Universal and/or Drake apparently disagree.” Symettrica stands firm in its assertion that the use of the clips at issue constitute fair use, further alleging that UMG failed to consider fair use at all before instructing the sites to remove the film.
Without actually seeing the documentary, it’s impossible to say whether use of the copyrighted music and videos was in fact infringing or fair use. Although documentaries by nature constitute a form of commentary and often criticism, the issue depends on how exactly the clips are used and incorporated in the documentary. For example, sprinkling various music and video clips from Drake’s repertoire throughout the documentary simply to illustrate and document his career, without more, would likely not qualify as fair use. Likewise, using the clips merely to enhance the entertainment value of the documentary is not enough. On the other hand, if the music is incorporated such that the documentary uses no more than what is necessary, and involves substantive commentary on the actual content of those clips—for example, noting particular elements of the videos, discussing Drake’s melodic flow and stylistic blend of hip hop and R&B, or breaking down lyrics relevant to his feuds with Kanye West, Pusha T, Meek Mill, etc.—Symettrica would have a much stronger case.
In support of its position, Symettrica says it obtained counsel from an unnamed “reputable and experienced” copyright law firm in the U.S., which gave the company the all clear as far as fair use is concerned, in the form of a fair use opinion letter. “The Fair Use Opinion Letter noted that the Documentary sparingly uses unlicensed materials to illustrate different points being made in the Documentary by the narration and various interview subjects, and that the Documentary used no more of the unlicensed materials than was needed to illustrate the points being made in the Documentary,” the complaint reads. Whether Symettrica’s use of those clips was in fact “sparing” and no more than necessary is likely to be a point of contention between the parties. In its letter requesting Netflix to remove the documentary, UMG says that the film “extensively uses over a dozen Drake master recordings and videos” without authorization (emphasis added).
Symettrica asks that the court find UMG liable for misrepresentation under section 512(f) of the DMCA and affirm that its use of those clips in fact qualifies as fair use. I imagine UMG will have a different take on the situation. More to come…