The BBC faces a lawsuit from the makers of The Cosby Show for copyright infringement in its June 2017 documentary.

One of the biggest scandals to come out of the US music industry over the last few years involves the sexual abuse allegations made against US actor and television personality, Bill Cosby. Commentary and analysis of these allegations have been widespread, and the BBC has produced a documentary reporting on the allegations. Now, Carsey-Werner (CW), the company behind The Cosby Show, has launched a lawsuit in a Californian district court against the BBC, alleging copyright infringement. The lawsuit (which is also made against the documentary’s production company) claims that the BBC’s use of various audio and visual clips from The Cosby Show as part of its report were unauthorised – and therefore infringe CW’s copyright in the show.

In its complaint, CW argue that the documentary (which is an hour or so long) uses a total of two music cues and eight audio-visual clips from the show to boost the appeal to its viewers. Put together, this combined media amounts to 234 seconds, ’which represents 6.5% of the total running time’.

The issue of ‘fair use’ (which is similar to the concept of ‘permitted acts’ in the UK) could play a key part in this legal saga. Under US law, documentaries may benefit from the freedom-of-speech principle of fair use, which permits the unlicensed use of copyrighted works in certain circumstances. Among these permitted uses are those for the purposes of criticism, comment and news reporting. Lawyers for the BBC may well argue that these were the intended use of the material for its documentary.

Equally, CW may face a hurdle in the fact that the documentary wasn’t shown in America. Their argument that “the intentional acts were expressly aimed at California and caused harm that [they] … knew was likely to be suffered in California” may be drastically weakened.

This lawsuit is a clear demonstration of the lengths and means media companies will resort to to protect their copyright works and the value these works represent. Companies are determined to make sure that copyrighted material is not used without their express consent, or a licencing fee.

It’s worth remembering that this is a claim brought in the United States, and so a judge’s conclusions in England and Wales may differ considerably. Nevertheless, it will still be of great interest to us here across the pond to see the outcome of the lawsuit when it does arrive.

For more information, please contact Nick Lewis.

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