I’ve read many a cease-and-desist letter, and I’ve even written a few, but I’ve never seen an IP demand issued personally on late-night TV. Here’s David Letterman, complaining to Joaquin Phoenix about the use of portions of Phoenix’s infamous 2009 Late Show appearance for a new movie. Many will recall Phoenix’ bizarre, bearded 2009 appearance, where Phoenix claimed to be quitting acting to become a hip-hop artist. Since then, it’s come out that the appearance was part of a Borat-style false-reality performance, as part of Casey Affleck’s mockumentary I’m Still Here.
During yesterday’s interview, the two performers (Phoenix now cleaned up) discussed the film. After pleasantries, Letterman shifted into the IP issues (about 2:45 in). According to Letterman, his lawyers said he could sue, but that Phoenix’ lawyers claimed the use was fair use because it was for a documentary. Of course, it turned out to be otherwise — in Dave’s words, “Guess what, it’s no documentary. It was a theatrical ruse.” Moreover, he said, “I’m in it . . . at a pivotal point in the film.”
And now the demand: “Now you owe me a million bucks.” Ultimately, Phoenix promised, “We’ll work it out,” asking “but, can we talk about it privately?”
I find it odd in these days of sophisticated transactional lawyering that — regardless of any possible fair use — a commercial use like this would not have been cleared, in writing, in advance. Indeed, considering the “pivotal” role that the 2009 Letterman show appearance played in the film, it would appear crucial to nail down permission for that piece of IP, fair use or not. This is a film, where real money is at stake and risk-taking is usually quite low.
So is the demand real? Who knows. But for what it’s worth, a Letterman writer earlier claimed that Dave knew that the earlier, original 2009 appearance was a hoax. So I don’t know, but I sure hope that Dave’s demand is a gag. Considering that the Affleck/Phoenix movie is intended to explore the relationship between media and celebrity, it would be fitting to add our society’s constant stream of IP demands to the mix.
But then again, sometimes a demand is just a demand.