On the cusp of premiering on Showtime, the documentary Venus and Serena has drawn a lawsuit from the United States Tennis Association.
On Friday, the USTA filed a complaint in New York federal court that alleges that filmmakers Maiken Baird and Michelle Major used unauthorized footage in their film about the rise of tennis superstars Venus and Serena Williams. The lawsuit has already been discussed by news outlets like The New York Times, reporting about the copyright allegations, but the other claims could make this dispute worth close attention.
If this was a straight-forward copyright claim about unlicensed footage, a judge would be looking at the “four factors” for determining fair use — the purpose and character of use, the nature of the copyrighted work, the amount taken and the effect of the use upon the potential market for the copyrighted work.
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But there’s are a few wrinkles in this dispute that transform a typical fair use controversy into a deeper discussion for documentarians and news organizations about access and control.
Like many professional sports associations with billion-dollar TV rights deals, the USTA doesn’t allow just anybody with video cameras to show up at the U.S. Open. Instead, for those who want to cover the annual tennis competition with video equipment in tow, something more is required — an invitation.
The lawsuit says that the filmmakers approached the USTA about being able to film at the 2011 event. The complaint cites an e-mail from Major where she seeks accreditation for a “small film crew of three or four, plus two producers.” The e-mail also stated, “We are entirely willing to agree to film only where and what your organization will allow.”
The USTA says it was willing to work with the filmmakers and advised them that footage from the event would be subject to a “standard footage licensing agreement and then applicable ‘rate card.'”
Major is said to have replied by thanking the USTA and after requesting that they be able to film the Williams sisters playing their matches, noted that “we understand we will have to license.”
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What happened next is the controversial part.
“We had every intention to license archive as well as match footage,” Major tells The Hollywood Reporter. “We had no idea that they had not wanted us to put in parts they saw as bad for tennis.”
Major is referring to the 2009 Serena tirade that the filmmakers are claiming made the USTA nervous about the film, and about what other footage would be allowed in the documentary. In the lawsuit, the USTA says it has “strict internal editorial guidelines concerning the nature and subject matter of the footage it agrees to license to ensure that the licensed footage is in the best interest of the sport.”
That statement has drawn the ire of the film’s executive producer, Oscar-winner Alex Gibney. “The USTA’s efforts to censor this film about America’s most inspiring female athletes don’t change the fact that my colleagues were entirely within their legal rights to use a small amount of widely seen footage,” he says.
But there’s more here.
According to the lawsuit, the filmmakers were told of a five-minute limit to licensed footage and that the USTA had “internal guidelines and contractual commitments” that required that any license “exclude the right to broadcast the film on cable and on-demand television during the three-week period in which the U.S. Open is held.”
In other words, the USTA might also have been concerned about protecting its TV deals. The association just signed a $770 million contract that runs for 11 years with ESPN. It’s supposedly exclusive and the USTA might not want Showtime’s film interfering with any obligations.
Whether the USTA is looking to protect the image of the game or the sanctity of its contracts, it’s worth noting that the plaintiff is not merely suing Baird and Major for copyright infringement.
The complaint (read here in full) also includes causes of action for unfair competition and promissory estoppel.
The latter is especially worth talking about as the plaintiff makes the case that “in seeking accreditation from the USTA to shoot footage at the 2011 US Open for use in the film, the defendants expressly promised to abide by the USTA’s policies and procedures, including the need to pay a licensing fee for any US Open footage included in the film. The USTA reasonably and foreseeably relied upon this promise in granting the defendants unprecedented access to the NTC to film pre-approved behind-the-scenes footage for their film.”
Yes, the case presents the issue of whether 20 minutes of video from the US Open is too much; but the lawsuit also deals with negotiations of access to events that are subject to valuable TV deals. Major formerly worked at ABC News, and it’s hardly a stretch to see a professional sports league make a similar claim against a news outlet that covered too much at a live event and/or put the sport in an unflattering light.
What exactly does the USTA believe that the filmmakers promised?
The answer will be fleshed out as the lawsuit proceeds. In the meantime, Major says, “as documentary filmmakers we have to maintain control over content.”
Email: eriq.gardner@thr.com; Twitter: @eriqgardner
