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Starting with former Fox Studios head Bill Mechanic, a friend of Harvey’s who is interviewed in the film, and with a boost from The Criterion Collection (which controlled about an eighth of the excerpted titles), Persinger and Ross eventually secured basic cable rights for approximately $175,000 — including music — with an additional $200,000 spent for international TV and DVD.
“But we’re paying for and clearing film clips even today,” says Persinger. “It’s going on three years now.”
Fortunately, there is a remedy built into copyright law itself — namely, the concept of fair use. As defined in Clearance and Copyright, the standard textbook on intellectual property, fair use is a defense of copyright infringement for purposes of criticism, commentary, news reporting, education, scholarship or research, given certain conditions. “If your film is furthering some socially important purpose,” reads the text, “. . . and you behave in a socially acceptable way, you probably can use a little something from someone else’s work, as long as you don’t take the ‘heart’ of the work, don’t take more than you need and your use does not hurt the market for the original work.” But much of fair-use law remains unexplored by legal precedent, making it difficult for the companies that provide Errors & Omissions insurance (which indemnifies filmmakers against copyright claims) to use it as a legitimate legal defense.
“The problem is that it’s completely murky what’s acceptable and what’s not,” says documentary filmmaker Morgan Neville (Shotgun Freeway, Shakespeare Was a Big George Jones Fan). “It’s difficult to get distribution unless you’ve got insurance. You can’t get insurance unless you have licenses for everything, and insurance companies aren’t interested in making fair-use arguments, no matter how full of merit they are.”
“We begged them,” says Persinger when asked whether Z Channel’s E&O ?carrier might have considered a fair-use defense. “The problem was that we were making the film for a corporate entity.”
Michael Donaldson — the author of Clearance and Copyright and a partner in Donaldson & Hart law firm, as well as the supervising attorney on Z Channel — thinks things might be about to change. He routinely delivers a presentation in which he shows film clips that have resulted in fair-use precedent, after which the audience votes on how they think the courts ruled.
“I don’t think the use of film clips in a documentary is a gray area anymore,” he says. “For a variety of reasons, fair use is a little harder to claim in a narrative film. [But with documentaries] I think the courts have decided enough cases — there are only six cases in my book, but six or eight cases have come down since then — and my position is that there’s plenty of clarity. Yes, it’s on a case-by-case basis and yes, the court will look at all the facts, but there are very strong guidelines.”
“Sometimes I think, sure, this would make an interesting test case,” says Thom Andersen about Los Angeles Plays Itself. “But it’s not something I’d like to spend my life on.”
He may not have to.
Last November, the Center for Social Media at American University (which, like Duke’s Center for the Study of the Public Domain, is funded by a grant from the Rockefeller Foundation) posted its “Documentary Filmmakers’ Statement of Best Practices in Fair Use.” This document, supported by a host of independent film institutions (including the Association of Independent Video and Filmmakers and the International Documentary Association), seeks to define how fair-use law should be interpreted, and offers guidelines for the documentary filmmaker dealing with copyrighted material. These guidelines fall into four categories: If the clip facilitates media critique; if it provides an example or analogy; if its inclusion (sound or image) is accidental or incidental; and if the clip is archival, hence the best or only way to tell the story.
Donaldson, in conjunction with IFC and filmmaker Kirby Dick, also confirms that This Film Is Not Yet Rated will be released sans clearances, on the basis of fair use. Premiering at the Sundance Film Festival last January, This Film Is Not Yet Rated — true to its title — was granted a commercially impractical NC-17 rating by the MPAA’s anonymous professional censors, whom the documentary stalks and exposes publicly for the first time. To demonstrate ratings double standards for studio films versus independents, gay versus straight, sexually explicit versus violent, Dick showcases numerous copyrighted scenes in their censored and uncensored versions. Echoing Andersen’s claims of institutional bias, Donaldson points to actual boilerplate language included in standard studio licensing agreements, which states that “the production in which the clip is used shall not be derogatory to or critical of the entertainment industry . . . and will not be used in a manner derogatory to or critical of the motion picture from which the clip was taken.”
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