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The question of whether "Catfish," in which a photographer and his filmmaking pals unravel a Facebook mystery, is a documentary or not had been an academic one.
Now the question may decide a lawsuit.
(SPOILERS in this pararaph.) "Catfish" follows photographer Nev Schulman as he strikes up a friendship via Facebook with a little girl in Michigan and her mother. Along the way, he also gets uncomfortably close to a relationship with the woman's adult daughter — but begins to suspect something's up when the woman sends an MP3 file of the adult daughter singing, and Nev discovers it's actually a recording by singer-songwriter Amy Kuney.
The movie uses about 18 seconds of Amy Kuney's song "All Downhill From Here." That's enough, says Threshold Media — the owner of Kuney's record label, Spin Move Records — to force the makers of "Catfish" and its distributor, Universal Pictures, to pay for the rights to the song.
Threshold filed a copyright infringement lawsuit on Friday, The Los Angeles Times reported. Threshold is seeking statutory damages, profits and an injunction.
The inclusion of a snippet of a song in a documentary would seem to fall under the "Fair Use" doctrine, which allows journalists and non-fiction filmmakers to include small portions of copyrighted material without having to pay the copyright holder. (It's the same legal principle that allows book critics to quote passages from the books they review.)
But Threshold's lawyers counter that by saying that "Catfish" is not a documentary. They don't claim "Catfish" is a fake (which some critics speculated about when the movie debuted at the 2010 Sundance Film Festival), though.
Neville Johnson, one of Threshold's lawyers, told the LA Times, "I don't think it's a legitimate documentary because they're filming a movie about themselves and there was no public interest in this."
Ariel Schulman, the film's co-director and Nev's brother, disagreed. "That's pretty interesting. I didn't realize that was not allowed in the definition of documentary," Ariel Schulman told the LA Times. "I think a documentary is the account of a true story, which this is."
Ariel Schulman also said that he, his brother, and co-director Henry Joost are longtime friends of Kuney, who apologized before the lawsuit was filed. "She was like, 'Sorry, guys, it's my label.' It's not her personal decision. She has nothing to gain from them trying to sue us," he said.
It's easy to make the argument that "Catfish" is a documentary, and that it's a socially relevant one — a case study of the perils of making friends in the age of social media.
The bigger problem is that such lawsuits, even if they get tossed out of court, do get expensive for all parties. Documentary filmmakers don't have the money to go to court, and the media companies who file these lawsuits know it. The situation mocks the idea of the "Fair Use" doctrine, and have a chilling effect on documentary filmmakers who should be able to comment on our culture without being threatened with a lawsuit.