Even though The Cosby Show has been pulled from broadcast, the show’s producers have filed a copyright lawsuit against BBC and Sugar Films for allegedly using a substantial amount of copyrighted material for a documentary called Bill Cosby: Fall of an American Icon, which depicts the sexual assault scandal that Bill Cosby was embroiled in these past few years.
According to The Hollywood Reporter, the documentary in question has a run time of about 60 minutes, around 4 minutes of which was copyrighted material. Carsey-Warner alleges that the 8 audiovisual clips and the 2 musical cues from The Cosby Show were used without permission from the production company. Furthermore, because the clips were shown in the documentary over a caption reading, “The Cosby Show – Carsey-Werner Company/Bill Cosby”, Carsey-Warner argues that the defendants willfully infringed upon its copyright. When the documentary was first broadcast, Carsey-Werner sent BBC a letter saying that the film should not be rebroadcast. BBC did not heed this warning and rebroadcasted the show anyway.
The case will probably hinge upon the fair use doctrine. When determining if the use of copyrighted work qualifies as fair use, courts consider the purpose and character of the use, the nature of the copyrighted work, the amount of the work taken, and the effect of the use on the potential market. Carsey-Warner alleges that BCC and Sugar Films used these clips as a way to directly profit from them, without paying a license fee to the production company. The company alleges that the inherent entertainment value and popularity of The Cosby Show clips would have drawn viewers’ attention and that the defendants knew of this and sought to capitalize on it.
BBC and Sugar Films will probably argue that the use of the copyrighted material was not to capitalize on the popularity of the show, but rather to give the audience of the documentary context around the Bill Cosby scandal. Part of the reason that the sexual assault scandal was so shocking was because of the family-friendly image that The Bill Cosby Show had cultivated for its titular star. Juxtaposing these clips against the backdrop of the sexual assault scandal not only offers context on the scandal, but also offers commentary on The Cosby Show itself for creating a completely false image of Bill Cosby. Moreover, given that the copyrighted material only took up a small portion of the entire documentary and given that the short clips will have a minimal effect, if any, on the potential The Cosby Show licensing market, BBC and Sugarland are likely to have a strong case for arguing that the clips constitute fair use.
Adele Zhang is an Entertainment Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2020).