Fair Use Gets All Shook Up in the Ninth Circuit

On November 6, the 9th Circuit affirmed the district court's preliminary injunction against distribution of "The Definitive Elvis"- a 16 hour documentary about the life of The King. It's a troubling opinion although the court went through the motions of analysing all the fair use factors. One bad fact is that the defendants rendered themselves unsympathetic by stating on the box that "every film and television appearance is represented." From this the court concluded that defendant "is not advertising a scholarly critique or historical analysis, but instead seeks to profit at least in part from the inherent entertainment value of Elvis' (sic) appearances...". Can fair use be negated by how it is advertised? Maybe the biographer should have called it "the Transformative Elvis." The court dismissed the possibility that an injunction was an unconstitutional prior restraint by reciting that if a use of copyrighted material is not fair use, there can be no first amendment problem with enjoining it. The Court then analyzed the use of each kind of copyrighted work (tv appearances, photographs, film clips) and found that the use of copyrighted works was not "consistently transformative." But the Court failed to ask whether the combination of dozens and dozens of different works, including the decisions of which works and which clips to use, and the filmmaker's voice-over analysis of how the images and sounds chosen fit into the overall life and career of the subject, was itself transformative. The Court seems to have concluded that if people would buy "The Definitive Elvis" and view it as entertainment, that cuts against fair use. But this suggests that dull, dreary biographies are transformative but exciting works are not. Courts continue to struggle with what is "transformative." The Court does not even consider that, rather than buying a $99 video to peep at excerts of works they would otherwise buy from licensees, viewers of "The Definitive Elvis" might be inspired by the film to go out and buy copies of plaintiffs' recordings, movies, sheet music, photographs, paintings rendered upon black velvet, and similar licensed memorabilia.
Unfortunately, this decision will likely be cited whenever a copyright owner seeks to restrain use of copyrighted clips in an arguably commercial biographical work. There's a good dissent by Judge John Noonan that faults the court for failing to consider the public interest and brushing off the first amendment. This decision highlights the need for creative commons.