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The Hollywood Reporter Quotes Neville Johnson in Article on Alleged "Fair Use" of Key Song in "Catfish" Film (Dec. 3, 2010)

Posted by Johnson & Johnson, LLP | Dec 06, 2010 | 0 Comments

Lawsuit Seeks to Expose Truth Behind ‘Catfish'

The Hollywood Reporter

December 3, 2010

By Eriq Gardner

Ever since Catfish premiered at Sundance in January, the documentary has engendered controversy. Made for just $30,000, it grossed more than $3 million and has left audiences scrambling to figure out whether the amazing story being told is just an elaborate hoax.

We might get an answer to that question, thanks to a lawsuit filed today in U.S. District Court in Los Angeles against distributors Universal and Relativity Media, as well as the directors and producers of the film. The lawsuit filed by Threshold Media seeks statutory damages and profits from the defendants and an injunction.

First, some background (Warning: spoilers ahead).

Directed by Ariel Schulman and Henry Joost, Catfish tells the story of Schulman's brother, Nev, a 24-year-old photographer who meets the woman of his dreams online. The film shows Nev as he connects via Facebook with an eight-year-old painting prodigy named Abby, her mother Angela, and Abby's older sister Megan.

Nev falls for Megan, a self-proclaimed musician, before ever meeting her in person. She earns Nev's adoration by sending him beautiful pictures of herself and some of her recorded songs.

The only problem? It's all a ruse.

As told in Catfish, Nev figures this out by comparing Megan's songs to those he finds on YouTube. ‘

In a tense, heart-pounding scene, Nev confirms the hoax by traveling out to the family's Michigan house to find that Angela is really an overweight mother of several children with disabilities, none of whom have a gift for painting or music. Angela had fabricated the whole thing.

Or did she?

When Catfish played at Sundance – and as Relativity outbid Paramount in a bidding war for the film's rights – the filmmakers were grilled at a Q&A over whether they really knew what was going on all along. Are we to believe that these hip New York artists are dumb and/or naïve enough to be taken in by this Michigan woman? Or should we assume, like some did at Sundance, that Schulman and Joost had figured it all out in advance and were attempting to manipulate audiences into accepting this modern-day digital fable?

The filmmakers protested their innocence – telling an interrogator at the Q&A that if they had made it up, then Nev deserved to be considered the “next Marlon Brando” – but the question has lingered for months and has even been the subject of a withering critique in The New York Times and a 30-minute segment on ABC's 20/20.

Now, thanks to the lawsuit, we get the clue that might help solve the mystery.

In one of the crucial scenes of Catfish, Angela-posing-as-Megan sends Nev a song that she claims to be hers. It wasn't, of course. In truth, it was a YouTube version of the song All Downhill From Here by singer-songwriter Amy Kuney, who is signed to Spin Move Records, owned by Threshold Media Corp. Later in the film, during the closing credits, Kuney's entire song is again played.

At first, Spin Move seemed proud of Kuney's quasi-involvement in the film, touting it on its website. But the record label soon removed the post.

For some time now, Threshold has been attempting to get filmmakers to pay licensing fees for the song. According to the new copyright infringement lawsuit, the producers have rejected doing so. According to Threshold's LA lawyer, Neville Johnson, the producers claimed that since the song was part of a real-life documentary, it was a “fair use” of the copyright.

But what if those were staged scenes – and filmmakers knowingly exploited a copyrighted song? Wouldn't the “fair use” defense crumble?

Let's consider it the David Letterman legal theory. In September, Letterman made that same point upon hearing that Joaquin Phoenix's I'm Still Here was not really an authentic documentary, but rather a hoax.

When Phoenix appeared on Late Night in September, Letterman jokingly told Phoenix that he deserved to be compensated for the clips of Phoenix' prior visit on the program that had made it into I'm Still Here. Letterman pointed out that producers could no longer hide behind a fair use defense.

Letterman was joking, but he made a pretty good point about the pseudo-documentary genre and its potential copyright problem.

“This is definitely fair use because it's a true story,” says Marc Smerling, a producer on Catfish. He says he has prepared for the litigation battles ahead, but adds, “We are hoping to come to fair and equitable arrangement with them.”

The film's producers may stick to their story that the whole thing was authentic, but they will have to do so under oath, and Threshold will enjoy a discovery proceeding to ferret out the truth.

For now, the plaintiff is seeking to enjoin further exploitation of its copyright and profits from the film. If the new lawsuit doesn't settle, we may very well know what really happened in the making of this intriguing film.

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