JIPLP 10th Anniversary Conference: Part I
While the film's prime market was the US, the film was made in the UK, which was why the ensuing litigation came before Sir Richard in July of this year in Sony/ATV Music Publishing LLC & Another v WPMC Ltd & Another  EWHC 1853 (Ch) (there were also parallel proceedings in the US, which required the court to apply both UK and Federal US law).
Before the court there were three main issues: was there a collateral contract to permit the use of the Beatles material; had there been estoppel on the part of the copyright owners and was there a US defence of fair use (the third being the subject of this lecture)? Sir Richard reviewed the non-exhaustive list of criteria to take into account when applying US fair use doctrine -- a doctrine which has not stood still since its introduction in 1976 and has been subjected to both academic and judicial scrutiny.
Sir Richard focused particularly on Judge Pierre Leval's influential 1990 article entitled "Toward a Fair Use Standard" 103 Harv. L. Rev. 1105 on transformative use ("key, but not the sole criterion"). Ultimately, does the new work merely supersede the earlier one or does it create something new? The more transformative the use, the less significant are the other factors. The fact that a use is commercial rather than non-profit may weigh against a fair use finding, but will not clinch the issue. Applying US fair use criteria to this English case, what did Sir Richard do? He concluded that the use was partially transformative, but there was little actual comment on the Beatles clips and the performances were being included for their entertainment value. The documentary incorporated 42 out of 95 minutes, which was far beyond what was necessary to establish the impact of the Beatles on contemporary culture. Overall, the use in question was not fair: it was excessive in its scale and insufficiently transformative.
Turning now to the reform of UK copyright legislation (s 30(1ZA) of the Copyright, Designs and Patents Act 1988) and the possible insertion of the words "or otherwise" into the statute governing fair dealing by quotations, Sir Richard compared the parameters of this proposal with the US doctrine. Would it have applied on the facts of Sony/ATV? Was this use a "quotation"? Was it a "fair dealing" and was more copied than was necessary for the user's purpose? (there being no need to establish the the original work was published and that there was sufficient acknowledgement). This use would be a quotation of the work, rather than from it. Would the result of Sony/ATV have been any different under UK law? No -- though the fact that the quotations defence is not limited to any specific purpose for the quotation.