Legal Question in Intellectual Property in California

Without seeing your documentary and knowing its audience and purpose, it's very hard to estimate the risk of complaint, of suit, and of a successful suit. For example, if it were just a sweatshirt, and it didn't figure into the story line, I'd say no problem. However, a costume, possibly including a mask, is not ordinary casual attire and is bound to draw viewer attention to the film subject's appearance as the Winnie the Pooh character from the book, raising a possibility that the copyright holders may sue on a theory either that (1) somehow this portrayal of their character either deprives them of revenue that goes into your pockets, or (2) it casts a negative light on their character that reduces the value of their copyright.. So, there is some risk, but a proper evaluation of whether it is very slight or moderate is beyond my powers.

This seems to be a question of fair use. Is your use a "fair use" and thus excepted from a claim of copyright infringement?

17 USC �107 outlines the four factors the courts use when they evaluate fair use of a copyrighted work. They are (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The facts of your inquiry seem similar to Ringgold v. Black Entertainment Television, 126 F.3d 70 (2nd Cir. 1997). In this case, a copyrighted work was used as a prop on the set of a BET sitcom about an African American Family. Essentially, in the family�s house, there was a poster of Ringgold�s copyrighted work, Church Picnic Story Quilt. The Church Picnic Story Quilt was not a prominent feature of the show, but it was shown as part of the living room set for the family The Second Circuit analyzed and applied the four fair use factors.

First, it discussed the purpose and character of the use of Church Picnic Story Quilt by BET. The court stated the use of the Quilt by BET was commercial, since the sitcom was for profit. The courts weigh commercial use of a copyrighted work in favor of the copyright holder. If the quilt were used for a critical comment on culture, or some other form of political speech, this factor would favor the user of the copyrighted work.

Second, the court addressed the nature of the copyrighted work. The more creative the

copyrighted work, the more protection it gets. The court here stated the Quilt was a very creative form of artistic expression, and thus this factor favors the copyright holder as well.

Third, the court analyzed the amount and substantiality of the portion of the copyright work that was used on the sitcom. Although the entire Quilt was featured on the sitcom, it was not a central part of what was going on. Consequently, this factor favored neither the copyright owner or user.

Finally, the court made it clear the fourth factor was very important. This factor addresses the effect of the use upon the potential market, and if BET�s use of the Quilt harmed the market for the original Quilt. The court reasoned sitcom viewers were probably not going to watch the show to see the Quilt, or buy less Quilts because the sitcom had a Quilt as a prop in it. Nonetheless, the court stated a jury should decide if the copyright owner was harmed, so the case was remanded.

Of course, other jurisdictions have their own way of analyzing the four fair use factors, but they essentially follow this model.

So, what does this mean for you? Well, if the documentary is making a political statement or

social commentary, then the first fair use factor is in your favor. However, your commentary is not about the Winnie the Pooh character, and thus, it is hard to say whether this factor weighs in your favor. In a case where Dr. Seuss was infringed to make social commentary about the O.J. Simpson case, it was determined that the social commentary was directed at O.J. Simpson, not at Dr. Seuss, making the use of the Dr. Suess work inappropriate for a claim under the fair use doctrine.

The second and third factors seem to weigh in favor of Winnie the Pooh copyright holders.

The final factor, if your use of Winnie the Pooh in the documentary harms the market for Winnie the Pooh products could go either way, depending on what the costume wearer does in the documentary and if a judge or jury views it as harming the market for Winnie the Pooh products.

This is not legal advice, but an overview of the legal issues that you will need to evaluate and use at your discretion of risk.