Eye on IP

Vol. No. 2008 - Issue No. 1
May 2008

COURT RULES MICHAEL MOORE'S USE OF WOUNDED SOLDIER CLIP NOT DEFAMATORY

This ruling is important to anyone who creates, distributes, or exploits entertainment content that contains clips or materials acquired from third parties.

In this case, a wounded soldier who was the subject of an NBC News report later appeared in Michael Moore's Fahrenheit 9/11 via a clip that was licensed from NBC News. Damon, the soldier, alleged that his non-consenting appearance in Moore's film was defamatory because, in the minds of his brothers in arms, it was seen as endorsing an anti-war and anti-Bush agenda. Both the Trial Court and the Court of Appeals rejected this contention based upon the fact that Damon appeared in a mere sixteen seconds of the two and half hour film, along with other people like Mr. Bush, Mr. Rumsfeld, and Mr. Cheney, and spoke only about his wounds in the clip.

The trial judge found that:

" ...[t]here is nothing that expressly or implicitly suggests that Mr. Damon knowingly associated with Mr. Moore's venture here. The reasons that people consent to interviews do not suggest endorsement of the views of the interviewer . . . . Circumstances in which people are interviewed on contentious matters suggest that people with strong views, or people with views that they would like to have communicated, frequently submit to interviews by people they wouldn't like very much or whose larger views they do not like very much. And one cannot say that that's defamation under the circumstances."

Hence, under a "reasonable viewer" standard, even a member of the military would not see Damon as endorsing Mr. Moore's point of view and consequently there was no defamation.

To read the full opinion:

Damon v. Moore (1st. Dist., March 21, 2008) No. 07-1365 at http://www.ca1.uscourts.gov/pdf.opinions/07-1365-01A.pdf

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