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Freedom of Information

(Courtesy Keith Aoki, James Boyle, Jennifer Jenkins)

“The more you tighten your grip, Tarkin, the more Star Systems will slip through your fingers.”

—Princess Leia to the Grand Moff Tarkin in the bowels of the Death Star

When Thom Andersen’s acclaimed documentary Los Angeles Plays Itself screened at the Egyptian Theater four times over the course of a week in late April, marking its second extended run in its eponymous city, there was very little media fanfare. The distributor didn’t take out full-page newspaper ads. The publicist didn’t wrangle magazine or TV coverage. There were no plans for a DVD tie-in. It almost seemed like a well-kept secret that the filmmakers finally, reluctantly, were forced to tell.

The reason was simple: the 206 separate film clips — one for every bone in the human body — incorporated into Andersen’s 169-minute essay about Hollywood, its physical and psychic environs and the distance separating the two. Although there is no way to know for sure, since Andersen didn’t bother to ask, the cost of licensing all of these clips for commercial exhibition, TV broadcast and DVD sales (domestic and foreign) could easily stretch into the millions of dollars.

A CalArts film professor whose previous film, Red Hollywood, remains unreleased for similar reasons, Andersen was inspired to create his latest work after seeing L.A. Confidential in 1997. (Although critical of the film on many counts — beginning with its use of the diminutive “L.A.” in the title — Andersen found it redolent of the period it explores, particularly in its attention to geography and architecture.) Beginning work in earnest in 1999, Andersen finished Los Angeles Plays Itself in 2003 and premiered it at the Toronto Film Festival that fall. The film then showed up on critics’ 10-best lists throughout 2004 and 2005. But if you want to see it today, good luck finding it on Netflix.

“Copyright is a form of property — intellectual property — and that means the holder has certain rights, but also certain responsibilities,” says Andersen. “Movies are obviously part of the collective memory of us all, but the people who hold the copyrights don’t seem to recognize any responsibilities.”

These parallel dogmas — free speech and intellectual-property rights — through corporate intervention and governmental abdication, are now on a collision course, and may in fact collide next month with the theatrical release of Kirby Dick’s incendiary This Film Is Not Yet Rated. A jihad against the Motion Picture Association of America, movie studios and the corporations that own them, Dick’s documentary plans to get around the prohibitive costs of copyright licensing by employing a “fair use” defense — a safeguard built into the Constitution but largely untested in the courts. Like the last time a foreign body slammed into the earth’s surface, disrupting gravitational orthodoxy, watch for sea changes, atmospheric gloom and toppling dinosaurs.

Published by Duke University’s Center for the Study of the Public Domain, Bound by Law? (Tales From the Public Domain) is a brief history of intellectual property and the public domain in comic-book form, written by Duke law professors Keith Aoki, James Boyle and Jennifer Jenkins and available both on the Web and in print from Soft Skull Press. (Lawrence Lessig, whose 2001 book The Future of Ideas presents the definitive account of the battle over copyright, appears as the Statue of Liberty, holding a camcorder in place of a torch.) As explained therein, the standard copyright term has grown from a flat 28 years a century ago to the current “life of the author plus 70 years,” thereby creating an important revenue stream for movie studios, which own an estimated two-thirds or more of all copyrights.

Moreover, a sliding scale of prices and arbitrary access to clips make the clearance process seem mercurial to even the seasoned observer. Codirectors Arnold Glassman, Stuart Samuels and Todd McCarthy’s 1992 documentary about the history of cinematography, Visions of Light — which relies on some of the most ravishing moments in the history of Hollywood filmmaking to help tell its story — has been widely available on video for years, while access to Mark Rappaport’s seminal Hollywood-centric clip-driven essay films has been spotty.

“There are lots of documentaries about filmmakers that employ film clips, but they also have this pious tone that prevents them from saying anything,” says Andersen, who cites Rappaport as a primary influence — particularly his revisionist history of the gay subtext in Rock Hudson films (Rock Hudson’s Home Movies) and his speculative biography of Jean Seberg (From the Journals of Jean Seberg). Rappaport, who practices a recombinant form of close reading, video mashup and metatheory, admits today that he never cleared any of the voluminous film clips that informed his bastard genre.

“John Waters advised me not to even bother seeking clearances,” he says via e-mail from his home in Paris. “I was prepared to offer $10,000 for a blanket clearance of all the Universal Rock Hudson movies, even though I didn’t have the money, with some proviso saying I would never show the film outside of festivals or not-for-profit venues. Well, the negotiations didn’t go very far. The [Universal] guy thought the film was, and I quote, ‘disgusting.’ Of course, if I were John Waters, I’d have put that into the ad campaign and insist it be on every marquee.”

 

Meanwhile, some filmmakers intimate darker motivations regarding how and when licenses are made available. British documentary filmmaker Adam Curtis wasn’t able to secure U.S. distribution for either of his BBC miniseries — The Century of the Self, a four-hour history of U.S. public relations as propaganda; and The Power of Nightmares, a controversial six-hour history of American neoconservatism and Islamic extremism — despite intense cult followings for each on the Internet and via word of mouth.

“For The Century of the Self, it’s a copyright problem,” Curtis says. “Basically, because I used so much footage from so many places, it’s just prohibitively expensive. It literally goes from $1,500 for showing a minute’s worth of stuff in Britain to $7,000 to $8,000 in America. For The Power of Nightmares, I think the networks have other reasons for not wanting to show it. I’m sure if you spoke to some of the networks in America, they would tell you that it’s because of the clearances. But I have a funny little intuition that there might be other reasons.”

Both Curtis’ and Andersen’s films have screened successfully in nonprofit venues, and The Power of Nightmares is widely available for downloading on the Internet, despite efforts to the contrary by the BBC. The first hour of Curtis’ film was even recently packaged as a free bonus disc with an issue of Wholphin — part whale, part dolphin — the DVD magazine produced by Dave Eggers and The Believer. Wholphin editor Brent Hoff declares his action one of advocacy, “to help break the logjam” in releasing “one of the most important documentaries of the last decade,” and the disc comes with a 2,000-word essay by New Yorker writer Lawrence Weschler, who cosponsored a weeklong intellectual-property conference at NYU in April titled “Comedies of Fair Use.” When contacted by e-mail about rights issues surrounding this unorthodox distribution gambit, Curtis offered an enigmatic response: “No, nothing to do with me.”

Beyond the outsize licensing fees, there’s the labor required in circumventing them. With her partner Rick Ross, Marshall Persinger produced 2004’s Z Channel: A Magnificent Obsession, a documentary about the legendary HBO precursor and its founder, Jerry Harvey, directed by Xan Cassavetes. Despite being bookended by Harvey’s struggles to hang on to his network, and the murder-suicide that ultimately darkened his legacy, the film was more about the secular religion of movies, illustrated with film clips from 53 different features, ranging in scale from the Greek documentary Attila ‘74 to The Empire Strikes Back. Initially intended for broadcast on television’s Independent Film Channel, Z Channel’s increasingly higher profile forced the filmmakers to return to rights holders multiple times to license clips, an ordeal that stretched far beyond the allotted time and budget.

“You have to make a plea, because clips are very, very expensive,” Persinger says of the arduous clearance process (which was overseen by Barbara Gregson of Miller-Gregson Productions, a company specializing in such matters). “It’s difficult, because you have to chase down the rights holders. There are split-rights deals and film companies that are now defunct. We made Z Channel for IFC, so we had to clear it for North American cable. Then in the course of making it, lo and behold, we got into Cannes in the official selection, and at that point we went back and cleared steps for the movie — festival use being one step, international television being the second step and the third step being worldwide DVD. Step deals mean that upon the street date of any one of those releases, you pay x amount of money. Then we had a very small theatrical release to qualify for an Academy [Award] nomination, so we went back a third time for that.

“Also, when you use a film clip, you have to clear the music, so you have to find the synch [rights to the actual recording] and the publishing [rights to the song], no matter how long ago it was. If there are actors in the clip, you have to go and get clearance from the actors. Then you have to go back and pay residuals to the DGA and the WGA [the directors’ and writers’ guilds, respectively] for the film clips that were under their jurisdiction. In every way, you have to strike a deal and hope everyone will look kindly on your project.”

 

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.”

 

“When this film was first budgeted, there was a very hefty budget for clearing the film clips,” says Donaldson. “And then as we moved along, what the filmmakers discovered was that no studio was going to license them clips to use in this.” The fact that IFC and Donaldson had already been through the Z Channel ordeal only made their decision easier. “It’s an interesting coincidence, isn’t it?” he asks rhetorically.

“Copyright holders have become so aggressive, they’ve limited the creative process in all different kinds of mediums,” says Dick. “That’s bad for artists and bad for the studios. I think they’re shooting themselves in the foot.”

Donaldson doesn’t expect the case to go to court. Following a modest theatrical release, This Film Is Not Yet Rated will be broadcast on IFC and then released on DVD. (One of the investors is the DVD-subscription service Netflix.) But a precedent will nevertheless be set, whether or not it’s a legal one. “I have a hunch, in a year or two there’ll be a lot of other people following IFC’s lead,” Donaldson says.

Says Curtis: “There’s actually a discussion within the BBC between people like me and some quite senior executives who are keen to say, ‘If we are a public broadcasting corporation, then we should ?make everything we have ever made completely free and downloadable at an MPEG-2 level, and people can do whatever they want with it. I think there is a feeling that if we could do that, we would be able to do something that those who are constrained by commercial considerations cannot. And then where will Rupert Murdoch be?

“This copyright thing is going to have to break down soon. People can now do this on their G4 PowerBooks at home. And this stops that creativity. William Morris would turn in his grave.”

This Film Is Not Yet Rated opens in Los Angeles on Friday, September 1.

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