http://www.producedbyconference.com/

The Produced By Conference returns to Los Angeles June 4-6, 2010 for an extraordinary weekend of discovery, learning and creative inspiration. Presented by the Producers Guild of America and hosted by 20th Century Fox Studios, the Produced By Conference brings together the entire producing profession.

Dean Cheley will be speaking on the panel PREP FOR YOUR REP: FINDING AND WORKING WITH AGENTS AND MANAGERS AND LAWYERS

Sunday June 6th, 4:45 pm - 6:00 pm

For the full interview go to:

http://videos.webpronews.com/2010/04/16/what-is-fair-use/

Yesterday, in an 8-1 decision, the U.S. Supreme Court struck down a statute that would have infringed on certain documentary makers’ First Amendment rights. Relating to the depiction of animal cruelty and killing on screen, the statute, by criminalizing such depictions, would have limited filmmakers’ abilities to cover any number of subjects ranging from hunting to our food industry to, ironically, animal abuse itself. The IFP New York was one of several organizations filing an amicus brief in support of the filmmaker filing the case, a documentarian named Robert Stevens who was sentenced to 37 months in Federal prison for including in his film acquired clips from a Japanese dog fight.

Attorney Michael Donaldson, an expert in copyright, clearance and rights issues (his Clearance and Copyright is a must-own for any producer) organized the supporting organizations, and his statement is below:

Today the U.S. Supreme Court struck down a statute on first amendment grounds that criminalized a lot of documentary filmmaking. Congress enacted a law to criminalize any depiction of any acts to animals in a film that results in the animals being killed or harmed, even if the activity on the screen is completely legal. Such a restriction would obviously cover hunting or fishing. The only requirement for prosecution was that the activity be illegal in the place that the film is possessed, exhibited, or sold. Even though the act exempted serious religious, political, scientific, educational, journalistic, historical or artistic, Chief Justice Roberts writing for an 8-1 court held the statute to be “substantially overbroad and therefore invalid under the First Amendment”

Three organizations of independent filmmakers stepped into the fray under the leadership of Los Angeles entertainment lawyer Michael C. Donaldson. The International Documentary Association, Film Independent, and IFP New York joined an Amicus Brief filed to help the Court understand the threat to documentary filmmakers. Donaldson said that the threat to documentary filmmakers across the country who might innocently include footage in their film that was legal when and where shot.

The case involved a documentary filmmaker by the name of Robert J. Stevens, who had included clips of a legal Japanese dog fight in a film he produced. The government did not argue that Stevens shot the film or was even present at the shoot. Since dog fighting is illegal in the United States, Stevens was arrested, tried, and sentenced to 37 months in federal prison – a term longer than Michael Vick received for actually participating in dog fights in the United States. Whatever one might think of Mr. Stevens and his films, the threat to filmmakers had to be removed.

Donaldson pointed out that the jury instruction advised that the exception only applies to images that are “significant and of great import.” “The bare reading of the words show how high the bar is set for filmmakers. Not only the film, but the images themselves, have to pass muster. Many an important documentary would be foreclosed. Others would not even be made because of filmmakers’ fear of prosecution,” Donaldson said.

The case was brilliantly argued before the Supreme Court by Patricia Millet from the Washington D.C. office of Akin Gump law offices. Donaldson was in attendance at the hearing in Washington and joined other counsel after for a lunch honoring Millet’s hard work as lead counsel.

Adam Liptak at The New York Times has more, including a discussion of the origins of the federal law, which was enacted in the Clinton administration primarily to combat the “crush video” industry, and whose unintended consequences included the prosecution of someone like Stevens. From Liptak:

The law was enacted mainly to address what a House report called “a very specific sexual fetish” — so-called crush videos.

“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”

When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.”

The law, said Wayne Pacelle, the president of the Humane Society of the United States, “almost immediately dried up the crush video industry.”

But prosecutions under the law appear to have been pursued only against people accused of trafficking in dogfighting videos.

WASHINGTON — Documentary filmmakers praised a Supreme Court decision issued Tuesday that strikes down a federal ban on the sale of videos depicting graphic violence against animals — arguing that had the law been allowed to stand, it would have threatened even movies like “The Cove” and “Food, Inc.”

The high court ruled 8-1 that the 12-year-old law violates the First Amendment.

Although animal rights groups argued for the law, a number of Hollywood groups and journalists orgs said it was so broad as to chill free speech.

The court threw out the criminal conviction of Robert Stevens, a Virginia filmmaker who in 2005 was sentenced to three years in prison for videos he made about pitbull fights , including one movie about the history of pit bulls that included a clip of dog fights in Japan, where such actions are legal.

A number of film organizations, including the Intl. Documentary Assn., Film Independent, the Independent Feature Project and the Independent Film and Television Alliance, filed a brief in the case arguing that the law essentially criminalizes almost any film depicting cruelty to animals.

“You take a movie like ‘Roger and Me.’ (which included footage of a woman killing a rabbit) Michael Moore would have been prosecuted,” said Michael Donaldson, who arranged for the industry orgs to be part of the amicus filings.

Donaldson said he was “very, very excited about the decision,” as it “affects documentary filmmakers’ rights across the board.

“The highest minded documentary filmmakers could have been pulled in to prosecution,” he added.

The Radio Television Digital News Assn. said that while such videos are clearly disturbing, the court’s decision makes it clear that the government lacks all-encompassing powers to ban free speech it does not deem appropriate. RTDNA said the decision will preserve the ability of news orgs to report about the wanton abuse of animals.

Chief Justice John Roberts Jr., writing for the majority, rejected the government’s argument that certain categories of speech deserve constitutional protection only if their value outweighs the social cost.

“The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits,” Roberts wrote. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

He said the law could be read to prosecute producers of films about hunting.

In a brief filed last year with the court, RTDNA and other media groups argued that banning such videos would shelter animal abusers by potentially curbing the ability of journalists to investigate and expose animal cruelty. Other groups joining in the filing included the Reporters Committee for Freedom of the Press and the Society of Professional Journalists.

The court’s lone dissenter was Justice Samuel Alito Jr., who argued that the First Amendment protects freedom of speech, “but it does not protect violent criminal content, even if engaged in for expressive purposes.”

Some animal welfare groups noted that Stevens was hardly a high-minded filmmaker, arguing that it was clear enough that his movies, with titles, like “Pick-A-Winna: A Pit Bull Documentary,” were a ruse to exploit depictions of animal cruelty. The Humane Society of the United States is pressing for a law that is more narrow in scope.

While the case was brought against Stevens, adoption of the law was aimed at black market “crush” fetish videos, in which women flatten small animals with their high heels. The law did help wipe out these videos, but animal welfare groups said that they have recently resurfaced on the Internet.

IDA Aids Court Victory for Documentary Filmmakers

Today the US Supreme Court struck down a statute on First Amendment grounds that criminalized a lot of documentary filmmaking. Congress enacted a law to criminalize any depiction of any acts to animals in a film that results in the animals being killed or harmed, even if the activity on the screen is completely legal. Such a restriction would obviously cover hunting or fishing. The only requirement for prosecution was that the activity be illegal in the place that the film is possessed, exhibited or sold. Even though the act exempted serious religious, political, scientific, educational, journalistic, historical or artistic, Chief Justice Roberts, writing for an 8-1 Court decision, held the statute to be “substantially overbroad and therefore invalid under the First Amendment.”

Your IDA, along with Film Independent (FIND), the Independent Feature Project (IFP) and the Independent Film and Television Alliance (IFTA), filed an Amicus Brief to help the Court understand the threat to documentary filmmakers. The case involved a documentary filmmaker by the name of Robert J. Stevens, who had included clips of a legal Japanese dog fight in a film he produced. The government did not argue that Stevens shot the film or was even present at the shoot. Since dog fighting is illegal in the United States, Stevens was arrested, tried and sentenced to 37 months in federal prison–a term longer than Michael Vick received for actually participating in dog fights in the United States. Whatever one might think of Mr. Stevens and his films, the threat to filmmakers had to be removed. That is when IDA stepped in.

The case was brilliantly argued before the Supreme Court by Patricia Millet from the Washington, DC office of Akin Gump law offices. Former IDA President Michael Donaldson organized IDA’s participation in the case and recruited Film Independent, IFP and IFTA to join. He was in attendance at the hearing in Washington and joined other counsel after for a lunch honoring Millet’s hard work as lead counsel. Like Donaldson, she rendered her services on a pro bono basis.

Confused About Fair Use?

A Prof & a Lawyer Discuss Best

Practices for Bloggers

Seasoned bloggers are generally familiar with the parameters of copyright law. But anyone can start a blog, and even for those who have been active on the Internet for years what is and isn’t permissible fair use is sometimes unclear.

The law itself can be confusing, especially when it is applied to media other than traditional print. However, understanding the policies underlying the law make it easier to interpret, Pat Aufderheide and attorney Michael Donaldson tell Web Pro News.

Aufderheide is executive director for the Center of Social Media at American University and works with the university’s law school to develop best practices for fair use, and Donaldson’s law firm, Donaldson & Callif, regularly provides fair use opinion letters.

“You cannot enter into discourse about our culture without quoting from it,” says Aufderheide, and hence fair use standards are based on the right of free speech under the First Amendment of the U.S. Constitution.

Thus, explains Donaldson, excerpting reasonable portions of copyrighted material to tell a story is considered fair use. He for-instances a video in which a voiceover that mentions taking a page out of John Lennon’s songbook is illustrated by 15-second clip of Lennon’s song “Imagine.”

“In order to make sense out of that comment, you had to play the song,” Donaldson says.

The Web Pro News article links to a video in which the two experts discuss fair use standards in greater detail.

Inspired partly by “This Film Is Not Yet Rated,” a veteran showbiz insurer has started offering coverage for documakers, aimed at allowing free use of film clips.

Initiative by Media/Professional Insurance is designed to explicitly allow documentarians to retain coverage if they rely on the “fair use” doctrine, which holds that copyright material may be used without compensation if it’s for purposes of criticism, comment, news reporting, teaching, scholarship or research.

Goal is to enable docus to contain clips without forcing filmmakers to pay hefty licensing or release fees. In the case of the “This Film Is Not Yet Rated,” filmmaker Kirby Dick included 134 clips without paying fees, which would have probably run in the $10,000-$15,000 rage for each clip. The clips in “Rated” were employed to portray the inconsistencies within the MPAA ratings system, often running side by side to depict violent scenes that were deemed acceptable and sexual scenes that were not. Pic, released by IFC, grossed $306,000 domestically.

“Documentary films are an important source of education, commentary and criticism,” said Leib Dodell, prexy of Kansas City based Media/Professional Insurance. “Rigidly requiring licensees or releases in all cases does not give filmmakers the flexibility to take advantage of ‘fair use’ in appropriate situations. This initiative makes ‘fair use’ in appropriate situations. This initiative makes ‘fair use’ work in the real world of independent filmmakers.”

Media/Professional, the nation’s largest provider of media liability insurance, developed the new coverage in partnership with the Stanford Law School Fair Use Project and several local intellectual property attorneys including Michael Donaldson, general counsel for Film Independent and the Intl. Documentary Assn. The additional coverage would probably range from several hundred to several thousand dollars, execs said Thursday at a media briefing.

Donaldson said at the event that there are two key questions for filmmakers wanting to employ “fair use”: Is the material needed to tell the story, and did the filmmaker use only what was needed. He also admitted he was somewhat surprised that no studio’s threatened to sue over Dick’s employing “fair use” for the clips on “Not Yet Rated.”

I fully expected one of those chest-beating letters from an attorney for a studio, but we never got one,” Donaldson said. “I was also quite confident that we would not be sued because Kirby took a very conservative approach on how the clips were used.”

Heightened profile for docs

For his part, Dick said he’s received many inquires from fellow filmmakers about his use of the clips and noted that the overall profile of docus has broadened significantly. “Documentary filmmakers are moving into the cultural debate now that the news media isn’t fulfilling its role,” he added.

IFC general manger Evan Shapiro said the initiative is particularly welcome since it comes at a time when getting clearances for use of copyrighted material has become much more difficult amid the explosion of digital platforms. “Trying to understand who’s the content owner is increasingly muddy.” He added.

Part of the initiative includes the availability of half a dozen Stanford Law School attorneys on a pro bono basis to filmmakers who comply with the Center for Social Media’s guidelines, published in 2005.

“This initiative will let filmmakers stand up for their ‘fair use’ rights where they were unable to do so before,” said Anthony Falzone, exec director of Stanford’s Fair Use Project. “Copyright holders will no longer be able to rely on fear and intimidation. Everyone will be on a level playing field.”

IDA prexy Diane Estelle Vicardi made an announcement about the Media/Professional policy Wednesday night at a reception for documentarians and the Academy of Motion Picture Arts & Sciences, leading to a standing ovation by attendees.

The film producer Alicia Sams viewed “Wanderlust,” a documentary about American road movies, as a way of introducing a new generation to Bonnie and Clyde, Thelma and Louise, and other giants for the genre. Films like “Five Easy Piece,” “Easy Rider” and “The Grapes of Wrath,” she was convinced, offered a window into the American character.

The 90-minute documentary, to be broadcast Monday night on the Independent Film Channel, was also a window into the frustrations of making a clip-intensive film dependent on copyright clearance, which has become hugely expensive in the past decade. Initial quotations for the necessary sequences came to more than $450,000, which would have raised by half the cost of the IFC film, direct by the Oscar-nominated team of Shari Springer Berman and Robert Pulcini (”American Splendor”).

“Paramount wanted $20,000 for 119 seconds of “Paper Moon,” Ms. Sams said. “The studios are so afraid of exploitation that they set boundaries no one will cross. Even after the prices were cut, we were $150,000 in the hole.”

Unwilling to pay those fees, IFC’s general manager, Evan Shapiro, helped Ms. Sams pursue another, more aggressive, track, which may point the way for documentarians who want to tap movie iconography without paying studio prices, Its strategy involved some negotiating hardball, backed up by a willingness to fall back on the tricky legal doctrine known as fair use.

Mr. Shapiro called in a Los Angeles entertainment lawyer, Michael C. Donaldson, who drilled him on copyright law. Under the 165-year-old fair-use doctrine, Mr. Shapiro was told, filmmakers, news gatherers, critics and educators can access material at no cost if they add something to it (like a voice-over), don’t undermine its value or use more than needed to make a point. Free speech trumps private property when a project is in the public interest, a term broadly defined.

“Fair use is the lubricant that allows creativity and copyright law to coexist,” said Mr. Donaldson, a former president of the International Documentary Association.

Though many public-affairs programmers employ the fair-use concept, cable outlets-the major producers and distributors of documentaries – have been reluctant to do so, as budgets for documentaries are low and litigation expensive. And it’s hard to get insurance for “errors and omissions,” the media version of malpractice, unless everything is licensed.

Mr. Shapiro had vowed never to embark on another clip-heavy film after Xan Cassavete’s “Z Channel: A Magnificent Obsession,” a costly 2004 profile of a cable network and used scenes from movies like “Salvador” and “400 Blows.” Rights had to be purchases separately for home video and film festivals, and renewed periodically. But “Wanderlust,” set in motion by a predecessor, was a chance to set a precedent.

We’re taking on the fight not only with “Wanderlust” but also with the upcoming “This Film Is Not Yet Rated,” said Mr. Shapiro, referring to a clip-dependent critique of the film ratings system set for release in theatres later this year. “That was made, from the start, under the fair use doctrine, as all of our documentaries will be from now on.”

Mr. Donaldson began contacting the studios at the Berlin film festival in February, initiating talks that dragged on for months. Accept $1,000 a title, he said, or IFC will move ahead anyway. Though Paramount held firm, 13 of the 18 copyright holders accepted the offer, including Sony Pictures Entertainment, MGM, Universal Studios, Miramax Films and Warner Brothers Entertainment, whose price was cut from $149,850 to $8,000. In the end the clips cost IFC les than $50,000. The holdouts advised IFC to rely on the fair-use argument, which, after viewing the film, they said they might legally challenge. (Mr. Shapiro is ramping up his insurance and putting anyway money in case that happens.)

Copyright law is not being used to stonewall filmmakers but to protect corporate assets, argues a licensing executive from one of those studios, who was granted anonymity because of his company’s press relations policy.

Because of the proliferation of clip-generated programming, movie clips are in great demand. The executive said his department had no problem when broadcasters use unlicensed sequences to mark the death of an actor, and it has a lower rate fro “nonprofits.” But “Wanderlust” is a commercial product that will, undoubtedly, have a shelf life.

“Fair use is a defense sometimes used, after the fact, to justify the appropriation of footage without asking,” the executive said. “The producers could have used shorter clips, or even still photographs. If someone can’t afford a Mercedes, that doesn’t mean he can’t drive.”

One copyright holder, James Velaise, the president of Pretty Pictures, ultimately agreed to license a clip from Francoise Truffaut’s “Breathless” for $1,000, a fraction of his usual asking price. Still, he said he took issue with IFC’s take-it-or leave-it approach and the introduction of fair use. Using the argument to save “a few thousand bucks” is “thoroughly dishonest,” he wrote in e-mail messages sent to Mr. Donaldson’s firm. It’s a tantamount, he said, to stealing. “I was simply blackmailed,” Mr. Velaise said from his Paris office. “And why pay anything if that lawyer is so sure of the law?”

No such confusion with Kirby Dick’s “This Film Is Not Yet Rated.” While “Wanderlust” employed a hybrid approach, fair use was the only option because of the volume of cli[s and the provocative subject matter. Licensing 135 excerpts at an average of $10,000 each would have doubled his budget, Mr. Dick said. And projects that ruffle the feathers of the media establishment, he suggested, face insurmountable challenges. Some licensing agreements prohibit negative portrayal of copyright holders, he observed. And others preclude the use of the clip in films not rated NC-17, which no on 17 or under can attend. He would be sued from breach of contract on both counts, he said, because his documentary takes aim at the studios and carries the NC-17 tag.

The enemy is not the copyright holders but ignorance of available option, other filmmaker san their advocates maintain. To address the problem, IFC is formulation its own fair-use guide, and last November, Pat Aufderheide and Peter Jaszi, communications professors at American University, coordinated a statement of fair-use practices drawn up by a coalition of filmmaking groups. Ms. Aufderheide has since met with the History Channel, Court TV and the Corporation for Public Broadcasting, among others, teaching them the value of fair use, economic as well as creative.

“IFC is positioning themselves as hard-charging rebels,” she said. “But by lowering their clearance costs, they’re actually canny businessmen.”

Because fair-use boundaries are seldom clear, lawyers are needed to interpret each case, said Prof. Lawrence Lessig of Stanford Law School. Earlier this month he announced the formation of a co-op of lawyers based at Stanford that will donate services to fair-use filmmakers.

“Shapiro is fighting the good fight,” Professor Lessig said. “But the danger of drawing a line in the sand is that others will try to erase it.”

Ever thought about writing YOUR screenplay? Entertainment lawyer Lisa Callif — who’s core practice is representing independent filmmakers in all aspects of movie-making including financing, production and distribution, and live theater – answered Breezy Mama’s questions on the steps to making movie magic and the money you can expect to make.

Once I write my amazing must-see movie (ahem), what are the first steps to take in order to see it come to fruition?

Well, if you talk to ten different lawyers, they’ll give you ten different answers to this. My advice is to get your product out there however you can. Get people interested in your film by utilizing the resources you have, rather than those you think you need. Lets say you really think you need an agent, but you don’t have one and don’t know of any who will meet with you. Don’t sit around waiting for an agent or spend all your resources on trying to find one. Meet with people, network, talk about your script at parties, get advice from those who have been there before, join filmmaking organizations like Film Independent. Call filmmakers who have similar projects and ask them how they got started. If you have the resources, create a teaser trailer so people can really get the look and feel of your film and don’t need to invest two hours in reading your script. Just keep creating and be willing to take risks.

Do you review scripts and make your decision on who’ll you’ll represent? Or at what stage in the process are you hired and who hires you?

Our core clientele is independent filmmakers. We typically get involved in the financing or pre-production stage. We help prepare and negotiate financing documents, do the production legal work (negotiating with directors, actors, writers, etc.) and also help negotiate distribution deals. Because we work with independent filmmakers the process is much different than studio films, and much more flexible.

How much money approximately can Breezy Mamas expect to be paid for the script they’re selling?

The most likely scenario is that a Breezy Mama’s script would be optioned for a period of time (an option is a producer’s right to buy the script — they “option” it for a small amount of money and then pay the big bucks if the film is made). For an indie film, options range from free to $50,000 or so. Most typically we see something in the $5-10,000 range. Then if the film is made the writer will typically get 2.5% of the budget of the film, plus approximately 5% of the profits. We also like to get the writer a bonus if the producer receives money to develop the project.

What sort of scripts are more likely to get financed?

Good ones. Seriously! People spend so much time trying to figure out demographics and historical figures, etc., etc., but the truth of the matter is, if it’s a great script, people will be interested regardless what it’s about. If someone pitched me about an edgy teenager who gets pregnant, decides to put it up for adoption in the PennySaver, I would’ve guessed that was a movie that would never be made. Yet, Juno was a huge box office success and to prove my point, Diablo Cody, the writer, won an Oscar for best screenplay in 2007.

What is one of your favorite movies that you have helped hit the big screen?

I can’t pick favorites among my clients!

Any favorite celebrities?

So many! I love funny, so Tina Fey and Steve Carrell are very high on my list. I also love watching really cute guys on the big screen and after seeing New Moon (yes, I’m a Twilight fan) Taylor Lautner is now on my list. Also have to mention Brad Pitt, Denzel Washington, Natalie Portman, Luke Wilson, Penelope Cruz, Meryl Streep, Alec Baldwin… Okay, I think that’s enough!

As a mom of a three year old son and partner in a practice, how do you manage your time?

I think Tina Fey once said something like, ‘It’s completely impossible, but you just keep doing it.’ However, I have to give credit (and thanks) to my [law] partner, Michael Donaldson, who raised three girls on his own. If anyone gets it, he does. It’s nice not to EVER get a raised eyebrow or a disapproving look when I have to work from home because my son is ill or when I get off a conference call at 5.15pm because I can’t be late to pick him up.

Can you tell us some career highlights?

When I started representing independent filmmakers. Being a lover of the arts, but not an artist, I finally found a way to contribute to the arts, in a meaningful way. I love that my clients rely on me and that I can make a difference in their journey. It also helps being a working mom when you love your job!

What about some “mommy” highlights?

Having an almost-3 year old there are highlights just about every day. Seeing how much he absorbs and learns is just amazing. This was the first holiday season when my son was really understanding and enjoying it and I was having so much fun lighting the menorah with him, listening to Christmas carols, opening gifts and showing him all of the holiday lights around the city.

Anything else to share with moms hoping to make a movie?

Just go for it! With the ability to reach so many people so quickly and to make movies inexpensively, don’t think of all the reasons why you can’t get something done. Several months ago one of my clients was conducting a Q&A after a screening of her documentary film and when an audience member asked her why the subjects of the film chose her to do a film about them, she said that they had been asked many times by different filmmakers to make a film and they always said, yes — to everyone. The other, more experienced, filmmakers went out and looked for financing that did not come through. My client was first time filmmaker with very little experience so she just showed up with a camera at their apartment one day. Now she has a film that has been featured at festivals around the country, had a theatrical and television release, and is now available on DVD — it’s a good thing she didn’t know any better! (The film is called Herb & Dorothy and the filmmaker is Megumi Sasaki –to watch a clip, click here!)

About Lisa
As part of her practice as an entertainment attorney for Donaldson+Callif, Lisa does a significant amount of clearance work for documentaries. Lisa has worked on such films as “This Film is Not Yet Rated,” Haskell Wexler’s “Who Needs Sleep,” “I.O.U.S.A.,” “Bigger, Stronger, Faster – The Side Effects of Being American” (all of which have premiered at the Sundance Film Festival), “The Art of the Steal,” and “Most Dangerous Man In America: The Dan Ellsberg Story” (which is on the documentary shortlist for an Academy Award). Lisa is currently working with Oliver Stone, Lawrence Bender, David Guggenheim and Lesley Chilcott on their documentary projects.

There was a time, not long ago, when the thought of using material that could not be cleared was quickly banished from a documentarian’s mind. Incidental capture of music and logos were feared by makers who found, after completing their films, that reputable outlets and distributors would not work with their films unless every possibly copyright-protected part of the movie was cleared, and no one understood the difference between copyright and trademarks. It was a seller’s market, and copyright holders were wielding their power to extort exorbitant prices out of filmmakers who had none to spare.

While the cost in dollars was high, so, too, was the cost to our culture and shared history. Henry Hampton’s Eyes on the Prize, a 14-part series about the American civil rights movement, premiered on PBS in 1987, and The New York Times called it “the most ambitious documentary undertaken by black filmmakers, and one of the largest television series ever undertaken by a black-owned company.” It won six Emmys and numerous other awards and was praised universally for its treatment of that important time period. Yet, the film fell out of distribution because the filmmakers were unable to afford to clear all rights in the clip-laden movie in perpetuity. Libraries hoarded their VHS copies, and as the tapes broke and lost their images, the fate of that film became a rallying cry for change in 2004.

Various groups around the country began reacting to the restrictive “clearance culture.”  Flouting the law and putting up bootlegged clips on YouTube was not a viable option for professional filmmakers, yet a solution to the problem was nowhere in sight. It appeared that the legal community sided with the corporations that had built up the clearance culture through their dealings with filmmakers and political lobbying, or at least preferred to take the route of least risk in dealing with clients who could not afford to be sued. Enter Michael Donaldson.

Academic lawyers like Lawrence Lessig touted “free culture” and rewriting copyright laws from the ground up, but Donaldson, along with Patricia Aufderheide and Peter Jaszi from American University and others, recognized the need among working filmmakers for a more immediate solution that did not involve breaking the law. The premise of their work, culminating in the Documentary Filmmakers’ Statement of Best Practices in Fair Use, was that the legal basis for citing the work of others, in the form of including copyright-protected materials in a film, already existed in the “fair use” doctrine. It was written into copyright law as the safety valve that allows for quoting the work of others to make new work. Copyright was meant to allow creators to capitalize on their work, not to log-jam new creation.

“He was the earliest entertainment industry lawyer to embrace the concepts in the Documentary Filmmakers’ Statement of Best Practices in Fair Use; indeed, we were grateful when he accepted a post on the legal advisory board,” says Aufderheide.  “Michael has never been an ideologue. He has been the best friend documentary can have. He values the work and the makers, and he enables it by his relationships with a wide range of industry leaders.”

Donaldson has been practicing entertainment law for over 30 years, and his experience and profile in the industry allowed him to easily fill the vacuum of legal expertise in favor of “fair use.” But it is his continuing devotion to helping filmmakers understand the legal issues surrounding their work, and advancing the cause through his professional associations, that have given him a lasting place in the pantheon of documentary.

“This might sound cliché, but it’s absolutely true: This Film Is Not Yet Rated would not have been the same without Michael Donaldson,” says Eddie Schmidt, the film’s producer, and current president of IDA’s Board of Directors. “From the first moment he and I were introduced at the Spirit Awards, through the day he joined us to appeal our MPAA rating, and way, way beyond, Michael was an integral part of the process.” He goes on to say that even the story of the film was shaped with Donaldson and his partner Lisa Callif’s “meticulous work.”

But it isn’t only filmmakers Donaldson has sought to educate and influence. He successfully worked with several insurers, such as Media Professional Insurance Company and Chubb Insurance Company, to offer fair use riders on E&O insurance policies. Aufderheide notes, “He pioneered agreements with insurers, which now allow filmmakers to have choices in errors and omissions insurance for fair use claims and reasonable prices. He has had a multitude of quiet conversations with high-level industry executives, which have normalized the notion of fair use.”

Donaldson also sits on the Advisory Board to Stanford University’s Fair Use Project; he has worked on Orphan Works legislation; he has taken the fair use argument abroad by assisting in drafting of the Rome Resolution of 2007, aimed at harmonizing fair use across the European Union; he served as president of the Board of IDA Directors from 2001 to 2004; and he has authored several must-have books, including Clearance & Copyright, now in its third edition and used as a textbook in over 50 colleges and universities.

“Beyond fair use, Michael’s been an overall advocate for documentary and independent filmmakers with regards to copyright, free speech and labor issues, to name but a few,” says Schmidt. “If there is anyone who truly deserves to be a ‘friend of the court’ with the Amicus Award (‘the court’ being the filmmaking community-at-large), it is Michael Donaldson.”

Donaldson has been key in helping the documentary community, beyond his own clients, understand the law surrounding the creation and selling of films. His impact is significant and his legacy lasting, through such films as IOUSA, Who Needs Sleep? and Roman Polanski: Wanted and Desired; through his legal clinics; and through his books, which educate filmmakers and lawyers around the world.

Auferheide says it best: “We are lucky to have Michael Donaldson on the side of documentary.”

Agnes Varnum is the communications manager at the Austin Film Society.