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Netflix Putting Out Fires over Fyre Festival Documentary

In 2019, Netflix found itself at the centre of pop culture with its release of the popular documentary about the Fyre Festival debacle.  If you’ve been living under a rock and need a quick primer, here’s Frye Festival in a nutshell:

New York based serial entrepreneur Billy McFarland and hip hop artist Ja Rule joined forces to launch an online music booking app.  As part of the launch, they concocted a super VIP music festival that would be held on a private island in the Bahamas, specifically on an island owned by Pablo Escobar.  The duo embarked on a massive social media campaign enlisting social media monarchy, such as Kendall Jenner and Bella Hadid, to promote the event.  Through a series of poor planning, breaches of contract and incredibly bad decision making, the event was cancelled.  But what makes this failed event so fantastical is that it culminated in at least 8 class action suits, a criminal investigation launched by the FBI, a securities fraud investigation launched by the SEC, 6 years jail time and a cumulative fine of $53.4 million.  Yes.  Fyre Festival was a failure of seismic proportion. 

The myriad of legal issues surrounding Fyre Festival was all encompassing.

Interestingly (and perhaps ironically), Netflix is also embroiled in legal controversy for its documentary on Fyre Festival.  In its mission to create a multi-Emmy award nominated documentary, Netflix is alleged to have flouted fundamental copyright laws.  Perhaps this reinforces the lessons learned from the Fyre Festival that disregarding laws in a desire to shape and profit from pop culture will always end up catching up with you.

The Background

Netflix teamed up with production partner Jerry Media.  Nicole Pinedo is a filmmaker who, independent of Netflix and/or Jerry Media, documented behind scenes video footage of the creation of Fyre Festival.  Pinedo alleges that Netflix and Jerry Media used segments of Pinedo’s footage in the documentary.  However, Pinedo’s consent was never granted.  As such, allegedly, Netflix and Jerry Media’s use of Pinedo’s copyrighted works was unauthorized and without a license.  Pinedo launched a federal court action in New York, claiming copyright infringement.  Pinedo is seeking injunctive relief, as well as monetary damages and punitive damages.  If successful, Netflix’s Fyre Festival documentary would have to be edited to remove Pinedo’s copyrighted material.  Interestingly, this is the second type of claim made against Netflix and Jerry Media.

Analysing This Case from a Canadian Perspective

Notwithstanding that this case is being heard in New York, cases such as these are important to grasp from a Canadian perspective, especially since Canada’s Hollywood North is a vibrant industry. 

The Canadian Copyright Act is a critical tool for the protection of creativity and the commercialization of that creativity.  Copyright protection extends to “every original literary, dramatic, musical and artistic work [in] every original production in the literary, scientific or artistic domain, whatever may be the mode of or form of its expression…”.  The rights granted to the owner of the copyright include “the sole right to produce or reproduce [or perform or publish] the work or any substantial part thereof in any material form whatever…”.  Bear in mind, however, that there may be another bundle of rights that exist pertaining to the copyrighted work: moral rights.  Moral rights are only granted to the author of the work (who may or may not be the owner of the work).  Moral rights can be contractually waived, however, and so it is possible that moral rights may not exist at all.  Moral rights provide the author of the work “the right to the integrity of the work and the right…to be associated with the work…or to remain anonymous”.  Regardless of whether a copyright registration certificate has been obtained in respect of the work, copyright exists.  In fact, it exists as soon the work has created into a tangible form.

Where the rights afforded to a copyright owner and/or copyright author are clearly set out in the Copyright Act, so to are the restrictions for third parties: “it is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.”  In addition, where moral rights exist, the author retains the “right to the integrity of the work” and the work cannot be used in a manner that is “to the prejudice of its author’s or performer’s honour or reputation…[and cannot] distort, mutate or other modify or use [the work] in association with a product, services or institution.”

As we can see under the Canadian Copyright Act, there are many layers of rights afforded to different players. In addition, it is possible that there are many players that may have contributed to the work to which rights attach.

Avoiding Claims

Any lawyer worth their weight will advise clients that conducting due diligence is wise.  Production companies and broadcasters are wise to conduct extensive clearance processes to ensure that they do not run afoul of the law.  Common areas of investigation include investigating the likelihood of copyright and/or trademark infringement claims, claims of libel, slander or defamation and also the violation of a right of privacy or the right of publicity.