By MERLYNE JEAN-LOUIS, ESQ.
On February 6th, 2016, one day before performing during the halftime show at Super Bowl 50, Beyoncé released the video for her new song “Formation.” The video contains striking imagery of black people and culture: women with large afros dancing in formation, an HBCU (historically black college and university) marching band, southern belles and allusions to the Black Lives Matter movement and the aftermath of Hurricane Katrina.
Plagiarism/Copyright Controversy Surrounding Video
The “Formation” video, which was directed by Melina Matsoukas, also contains footage from “That B.E.A.T.,” a 2012 documentary film that explores New Orleans' bounce music and dance culture. The film was directed by Abteen Bagheri and produced by Chris Black.
On Twitter, Black complained about the usage of the footage in “Formation” and accused Matsoukas and Beyoncé of plagiarism: that they tried pass off the footage as their own and called for the documentary's filmmakers to be credited. However, Black also acknowledged that he did not own the film and that it was commissioned by Nokia in conjunction with Sundance.
A representative for Beyoncé stated that the footage was used after Beyoncé's team sought permission and received a license from the owner of the footage. The representative also stated that filmmakers (“Formation” also contains footage from a film directed by Lila Keber) were credited for additional photography direction.
Primer on Copyright Ownership, Licensing and the Copyright Database
Copyright protects the rights of creators (known as authors in copyright law) of certain type of works, including films. Multiple creators of any work are the original joint owners of that work. They have the right to license that work to others so that the non-owners could use them in derivative works.
Once a work is created, many copyright owners register their works on the federal copyright database. This database stores the copyright information, such as a work's author/owner, of registered works. Anyone who desires to obtain a license to use the work could simply conduct a search on the database to determine from whom they must seek permission. Sometimes they must seek permission from the owners, but sometimes it's they must seek permission from a company that the owners have commissioned to handle license requests.
Theory #1: The Creators of “That B.E.A.T.” are Not Its Current Copyright Owners
Although Bagheri and Black may have been the original copyright owners of “That B.E.A.T.,” they most likely assigned (i.e. granted) their copyright ownership to Nokia via contract. Beyoncé's team most likely received a license from Microsoft, to whom Nokia sold its music business services in 2014. It appears that Microsoft is the current copyright owners of “That B.E.A.T.”
Wrinkle in Theory: No Copyright Registration for “That B.E.A.T.”
I conducted a search on the federal copyright database to verify that Microsoft was indeed the copyright owner of “That B.E.A.T.” Oddly enough, I could not find anything on the register related to the film. I even searched the term "That Beat" and found four entries related to sound recordings, not films.
At this moment, the copyright ownership of the film is known privately amongst the involved parties.
Theory #2: The Creators of “That B.E.A.T.” Care About Moral Rights
Although they no longer held the copyright, which protects economic rights, it appears that Bagheri and Black were concerned about their moral rights, which protect artistic rights. Moral rights permit a work's creator, even if they relinquished their copyright, to 1) claim authorship of the work and 2) to object to any change of the work that would harm the creator's honor or reputation. Unfortunately, the United States only recognizes moral rights for creators of works of visual art.
Nevertheless, there does seem to be a resolution related to moral rights. Based on their tweets, it seems that Bagheri and Black simply wanted to be credited for creating the film and be asked for permission to use the film. While the latter did not occur, Matsoukas did credit Bagheri (as director) on Twitter and thanked him for the beautiful footage he shot.
Lesson for Filmmakers: Be Careful When Assigning Your Copyright
Although Bagheri and Black did not approve the usage of footage from "That B.E.A.T" in the “Formation” video, Beyoncé did not need to receive their permission to use it because they no longer owned the film's copyright.
If filmmakers are concerned about both their economic and artistic rights in their work, they should take the decision whether to assign their copyright ownership quite seriously.