Twentieth Century Fox (Fox) owned and distributed the successful motion picture The Commitments. The film tells the story of a group of young Irish men and women who form a soul music band. In the film, the leader of the band, Jimmy, tries to teach the band members what it takes to be successful soul music performers. Toward that end, Jimmy shows the band members a videotape of James Brown’s energetic performance of the song “Please, Please, Please.” This performance came from Brown’s appearance in 1965 on a television program called the TAMI Show. Portions of the 1965 performance are shown in The Commitments in seven separate “cuts” for a total of 27 seconds. Sometimes the cuts are in the background of a scene, and sometimes they occupy the entire screen. Brown’s name is not mentioned at all during these relatively brief cuts. His name is mentioned only once later in the film, when Jimmy urges the band members to abandon their current musical interests and tune in to the great soul performers, including James Brown:

“Listen, from now on I don’t want you listening to Guns & Roses and The Soup Dragons. I want you on a strict diet of soul. James Brown for the growls, Otis Redding for the moans, Smokey Robinson for the whines, and Aretha for the whole lot put together.” Would it be fair use under U.S. copyright law for Fox to use just 27 seconds of James Brown cuts in the film without formally 238 Part 1 The Legal and Social Environment of Business obtaining permission to use the cuts? Advise Fox as to what, if anything, would be necessary to protect it from a lawsuit. [See Brown v Twentieth Century Fox Film Corp., 799 F Supp 166 (DDC)]

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