A US judge has ruled that British filmmaker Robert Carruthers infringed copyrights in music owned by Universal Music and ABKCO Music by making supposed documentaries that were really just greatest hits videos of the featured artists, including The Rolling Stones, Nirvana and Lynyrd Skynyrd.
Under US copyright law, documentary makers can sometimes include copyright-protected works in their programmes without getting permission from relevant copyright owners by relying on the fair use principle.
But the music companies argued that fair use did not apply in the case of the documentaries produced by Carruthers and his company Coda Publishing, which meant he needed sync licences from both Universal and ABKCO, which he failed to secure.
In their original 2019 lawsuit, the music companies stated that the “purported documentary films” made by Carruthers and Coda were “nothing more than a delivery system for intentionally infringed materials”.
In a new ruling, Judge Katherine Failla agrees. According to Law360, she said that - while the documentaries did include people commenting on the featured artists and their music - those comments were mere “hot takes” rather than expert analysis, with talking heads describing certain songs as “awful” and certain performances “embarrassing”, alongside sizeable chunks of each featured artist’s music.
There are four main criteria for deciding whether the use of a copyright protected work is ‘fair use’ under US copyright law.
The use of an existing work in a documentary is more likely to be fair use if it is educational or transformative; if a small and insignificant portion of the work is used; if the work used is factual in nature; and if the finished product won’t commercially compete with the original work.
None of that really applied in the case of the Coda documentaries.
Failla was pretty critical of Carruthers and his co-defendant Gwilym Davies, who was formerly Finance Director of Coda. She said both men tried to distance themselves from the documentaries despite running the company that produced them, and then - somewhat unconvincingly - tried to blame their former lawyers for their decision to release the programmes without securing the necessary licences.
Carruthers also decided that the “best defence was a good offence”, the judge said, and at one point focused on bullying the UK’s Music Publishers Association in a bid to stop the trade body from cooperating with its members that were involved in the lawsuit. That included making “unfounded allegations” of fraud, copyright infringement and money laundering.
Failla’s summary judgement pretty much favoured Universal and ABKCO entirely, although she did not find in their favour in relation to one of the infringed tracks, the Red Hot Chili Peppers cover of Stevie Wonder’s ‘Higher Ground’, but only because Wonder and his publisher were not involved in the case.
Failla also did not rule against a third defendant, Clare Gambold - who is married to Carruthers and had producer credits on the documentaries - on the basis it wasn’t entirely clear what her role was in relation to the creation of the copyright infringing videos.