3-PART DEFENSE

Donaldson says there are three elements to a successful fair-use defense for nonfiction films, including that the material is a “very good illustration of the point the film is making, that they only used what they needed to make the point, and the connection [between the material used and the point the film is making is clear.”

“When the claim comes in,” says Donaldson, “we don’t say, ‘We’re right and you’re wrong—see you in court.’ We say, ‘OK I see why you’re upset,’ but then we start talking about where the law is, and then we send them not only a nice long letter, but a DVD showing them the use in another film where the use was legally sound and that had been litigated so they can see them side by side. “These uses repeat themselves, and that’s why these claims go away, because we’ve amassed a great library of items that are or have been the subject of litigation.” And sometimes Donaldson ends up doing some fair-use editing for his clients. “We go back to the filmmaker and say, ‘I get why you’re using this, but after it illustrated the point you left it running because there was a wonderful punch line. You’ve got to take the punch line out; that’s not fair.’ ”

Among his client’s films are Miss Representation, about how the media misrepresents women, nominated for a 2011 Sundance Film Festival Award; and Oscar-nominated Gasland, about the environmental impact of “fracking,” a procedure of creating fractures in rocks and rock formations used in drilling for natural gas.

Inside Job, a Donaldson-rep re -sented film about the Lehman Brothers collapse of 2008, won an Academy Award in 2011. Donaldson declined to speculate on which of his clients might be nominated for a 2012 Oscar: “I could tick off a lot of clients.”

His title of “legal Obi Wan Kenobi” was bestowed by Eddie Schmidt, president of the International Documentary Association. Schmidt produced This Film Is Not Yet Rated, about how film rating boards handle sexual material and influence culture. The film had 134 clips that were covered by fair use.

“Michael did a remarkable job on This Film Is Not Yet Rated. He made the film possible,” says Schmidt. “By following his guidance, we were able to make a much more persuasive, penetrating case about how ratings boards have a tremendous effect in what we do or don’t see.” Schmidt says Donaldson is “very animated and excited when he seizes upon an idea, but also very thoughtful and shrewd in understanding the complexities, politics and perceptions of situations. He has taken on many pro bono cases on behalf of our organization.” Outside the office, Donaldson has a domestic partner of 12 years, three daughters and three grandchildren.

Among his hobbies—Donaldson won a gold medal at the 1998 Senior Olympics for parallel bars and a silver on rings—is globe walking. “I was online one night and I was curious about how people walk on those big balls—21⁄2 feet high—at the circus,” he explains. “So I ordered it from the circus supply store. My Pilates instructor didn’t know anything about how to do it, so I taught myself. … Now I can walk around the park, go downhill, uphill. It’s amazing —and a lot harder than it looks!” ■

Seeking to copy — legally– from Blu-ray discs and online media

One of the criticisms of the digital locks used by broadcasters and Hollywood studios is that, in trying to squelch piracy, they can interfere with fair uses of copyrighted material by other artists. And under federal law, it’s illegal to circumvent those locks. Chicago-based Kartemquin Films (the subject of the video at top) and other documentary filmmakers won a temporary exemption from that law a year and a half ago, with the help of students at the USC Intellectual Property and Technology Law Clinic and lawyers from Donaldson & Callif of Beverly Hills. Now the clinic and the firm are seeking to extend the exemption to all filmmakers and authors of multimedia e-books. The 1998 Digital Millennium Copyright Act made it illegal to circumvent “technical protection measures” on DVDs and other digital media. That created a dilemma for filmmakers who wanted to use a snippet from an earlier movie on DVD: Even if the use wasn’t infringing, they could still be sued for going around the locks. So even though circumvention tools are widely available online (despite the fact that they’re illegal to make or distribute), filmmakers used them at their peril. That’s why documentarians sought an exemption from the Copyright Office in 2009. Recognizing the potentially chilling effects of the anti-circumvention provision, lawmakers had included in the 1998 law a requirement that the office consider granting relief every three years to those whose non-infringing uses were adversely affected. The exemption documentarians won in July 2010 applies only to DVDs, and it expires next year.

Chicago-based Kartemquin Films (the subject of the video at top) and other documentary filmmakers won a temporary exemption from that law a year and a half ago, with the help of students at the USC Intellectual Property and Technology Law Clinic and lawyers from Donaldson & Callif of Beverly Hills.

In seeking a new exemption, the filmmakers are focused on two problems, said Jack Lerner, a law professor at USC who directs the Intellectual Property and Technology Law Clinic. The first is that fictional films have many of the same needs as documentaries, and they’re running into the same hurdles when trying to make legal uses of clips from movies, TV shows or news broadcasts. The second is that “technical protection measures” have become ubiquitous, extending beyond discs to media broadcast through cable, via satellite and online. Documentarians have been joined in the current application by independent filmmakers creating works of fiction, and they’re seeking permission to circumvent the locks on Blu-ray discs as well as DVDs. And if the material they seek is available only as a digital broadcast or online stream, they want to be allowed to circumvent the copy-protection technology on those transmissions. A similar request was filed by the USC clinic and Donaldson & Callif on behalf of four authors working on multimedia e-books about film, who seek permission to circumvent the locks on DVDs and digital streams (but not Blu-ray discs, Lerner said, on the theory that no one using a tablet needs the extra pixels). It’s worth remembering that the exemption wouldn’t allow filmmakers and e-book authors to make infringing uses of copyrighted material. It only applies to legal copying (or “fair use”). Think commentary, investigative reporting and parody, for example. So the question isn’t whether filmmakers and e-book authors are capable of doing good things with clips from copyrighted works — that’s a given. The question is whether they need access to copy-protected digital media to do those things. The major Hollywood opposed the 2009 application, arguing that documentarians didn’t need to circumvent the locks on DVDs to get the clips they needed. Instead, the studios argued, they could film the scene as it played on a TV, or they could ask the owner for a licensed copy. Anticipating a similar response this go-around, the filmmakers contend in their new application that they can’t get by with anything less than a high-definition copy, and that the licensing process puts them at the mercy of copyright owners who may not support the new works being created. Here’s an excerpt from their argument about their need for high-definition source material: “The technical standards for film distribution have evolved in ways that require filmmakers to obtain high-definition source materials,” the filmmakers argue in their Copyright Office filing. “Since 2009, many television stations have adopted HD distribution requirements such that virtually all major broadcasters now require that filmmakers deliver their films in HD. Because of this new standard, it is now impracticable for filmmakers to distribute films that make fair use without access to an HD source,” such as Blu-ray discs.  Their application also includes copies of two standard licensing contracts for clips, both of which bar the clips from being used in a work that’s “derogatory to or critical of the entertainment industry” or the company that created the clip. Such conditions would make it well-nigh impossible to do a documentary about media bias, say, or to use clips in a historical drama with a critical edge. The studios aren’t likely to welcome an authorized circumvention of the anti-piracy technology on Blu-ray discs, but the filmmakers contend that the material they need just isn’t available on VHS any longer and is increasingly scarce on DVDs. They also argue that as content creators, they too are eager to preserve copyrights and stunt piracy. And as far as they know, the exemptions granted for DVD circumvention haven’t given rise to any new allegations of infringement. The requests to circumvent Blu-ray and streaming protections represent the edge of the envelope for the Copyright Office, which has moved slowly and incrementally in the past on requests for exemptions. But they’re a logical extension of the exemptions granted for making fair use of content on DVDs. A decision on the application is due next year; stay tuned.

A similar request was filed by the USC clinic and Donaldson & Callif on behalf of four authors working on multimedia e-books about film, who seek permission to circumvent the locks on DVDs and digital streams (but not Blu-ray discs, Lerner said, on the theory that no one using a tablet needs the extra pixels).

October 20, 2011 by Adam Benzine Email/Share

Danfung Dennis’s Afghan war film Hell and Back Again (pictured) and Steve James’s Chicago-set doc The Interrupters are among the five nominees for the Best Documentary prize at the 21st Gotham Independent Film Awards, which recognize excellence in American filmmaking.

The other nominees in the doc category are Better This World, from directors Katie Galloway and Kelly Duane de la Vega; Bill Cunningham New York, from Richard Press; and The Woodmans, from C. Scott Willis.

Elsewhere, The Redemption of General Butt Naked – Eric Strauss and Daniele Anastasion’s documentary looking at a former Liberian warlord on a quest for forgiveness – is nominated in the ‘Best Film Not Playing at a Theater Near You’ category.

The Gotham awards are billed by the Independent Filmmaker Project (IFP) as being “the first major awards ceremony of the film season,” and previous Best Documentary winners have included The Oath (2010), Food Inc (2009) and Trouble the Water (2008).

The primary criteria for nomination consideration are that films are from U.S.-based or U.S.-born directors and producers, and that submissions are feature-length films “made with a point of view.”

Joana Vicente, exec director of the IFP, said: “The high calibre of this year’s Gotham Awards nominees’ work is truly remarkable. This extraordinary group of filmmakers and talent, both established and new, are breaking barriers and finding fresh, innovative ways to engage audiences through unique storytelling.

“We’re passionate about shedding light on well deserved independent cinema and excited to begin what is sure to be a momentous awards season.”

The Gotham Awards’ ceremony will be held on November 28 at Cipriani Wall Street.

By MICHAEL CIEPLY

Published: October 30, 2011

Dawn Hudson, the first person to hold a newly created post as the organization’s chief executive, has hung in more than twice as long. But that does not mean Hollywood’s film academy is at ease with the latest strong-willed woman to promise what has always come hard for it: change.

In June, Ms. Hudson was named to replace the academy’s retiring executive director, Bruce Davis. A 20-year presence on the independent film scene, she arrived with a commitment to social and ethnic diversity, a determination to raise the academy’s public profile and a reputation for shaking things up.

“If you don’t want to say yes, don’t take her phone call,” advises Michael Donaldson, an admirer who was Ms. Hudson’s general counsel at a nonprofit called Film Independent, which supports independent filmmakers, and its predecessor, the Independent Feature Project/West.

In Bette Davis’s day, the fights were about whether to charge for Oscar night tickets and cutting screen extras out of the academy.

At issue today is whether Ms. Hudson can accomplish a delicate balancing act: opening the group to fresh talent and unleashing its vast resources — net assets topped $258 million last year, while television deals for the Academy Awards guarantee a billion dollars in revenue over the next decade — without losing the confidence of a 43-member board that built its nest egg, and the Oscar brand, by protecting what already works.

For some, this seems to be a defining moment in a film industry that has surrendered energy to television and other media, adding urgency to Ms. Hudson’s task as the awards season churns toward the Oscar ceremonies on Feb. 26.

“It’s about preserving the emotional connection that people have to the movies,” said Terry Press, a publicist who serves on one of the academy’s internal boards. “That’s got to be the mission.”

Ms. Hudson and Tom Sherak, the academy’s elected president, declined to be interviewed. Both said it was too early in Ms. Hudson’s tenure to discuss the direction that she might take the academy.

But interviews with academy members, including past and present governors, who spoke on condition of anonymity because of prohibitions on public discussion of internal deliberations, make clear that Ms. Hudson was recruited to help fix what not everyone inside believes to be broken.

In the last few months, for instance, Ms. Hudson ruffled feathers by suggesting her own choices for annual invitations to the membership rolls — something that has largely been left to directors, writers and other artists in the academy’s various branches. Within the secretive academy, even small things like this can loom large. Some governors were offended, though as a member herself Ms. Hudson was entitled to offer names.

Backers say moves of that sort reflect Ms. Hudson’s conviction that the academy needs new faces, many from underrepresented ethnic or social groups.

“I don’t think anyone, any white person, in this town is more dedicated to diversity than Dawn Hudson,” said Stephanie Allain Bray, a black producer who is an academy member and who worked with Ms. Hudson on the board of Film Independent.

Diversity is not a strong suit of the academy’s governors; all but one are white, only six are women, and the average age appears to be over 60.

Along with prominent names like the director Kathryn Bigelow and the actor Tom Hanks, the board includes seasoned but less-recognized film workers like Kevin O’Connell from the sound branch, and Richard Crudo, a cinematographer.

Because physical attendance is expected at board meetings, virtually all of the governors are Californians. Making the rounds at private meetings in New York recently, Ms. Hudson suggested opening up the board with the help of video technology like Skype, something Mr. Sherak has also advocated.

“She’s a woman of intelligence, guts and compromise,” offered Sidney Ganis, a past academy president who was on the search committee that recruited Ms. Hudson, and who became acquainted with her as a member of the Film Independent board. Ms. Hudson, Mr. Ganis said, has been raising questions since she took over in an attempt to understand the academy, not dictating changes in practice or policy.

Features:

American Bar Association’s Legal Guide To Independent Filmmaking by Michael C. Donaldson and Lisa Callif

watch?v=uu59r2rJRBY&feature=player_profilepage

Hollywood Law: Up Next – Profiles

 By IAIN BLAIR, TODD LONGWELL, KAREN IDELSON, MICHELLE WEISS

 Here’s a group of attorneys that stand above the crowd and represent the next generation of sharp legal minds in the entertainment business.

Lisa A. Callif

Partner

Donaldson & Callif

Southwestern University Law School, 2001

Callif’s central focus has been on repping independent filmmakers in areas ranging from financing to production to distribution. She also has extensive experience in an area key for documentarians — the fair-use doctrine as codified by U.S. Copyright Law. As a result, Callif spends considerable time doing clearance work as well as rendering fair-use opinion letters, making it possible for clients to use limited amounts of unlicensed material in their projects. Callif has worked on indie docus such as “I’m Still Here,” “Teenage Paparazzo,” “Waiting for Superman,” and “Inside Job.” She’s now working with Oliver Stone, Jason Blum and Elise Pearlstein on their projects. Callif especially enjoys helping to shepherd small films all the way from pre-production through completion. “It’s satisfying to be part of taking someone’s dream project through all the different stages of production and providing the kind of advice that can help make that happen,” says Callif.

By MICHAEL CIEPLY LOS ANGELES —

Bad enough that documentarians have a hard time getting an audience for their wares. Now the United States Tax Court is raising alarms throughout the documentary world by questioning whether documentary-making can generally be considered for-profit activity. The International Documentary Association, Film Independent, and several other film organizations joined Monday in an amicus brief urging the court to recognize that documentaries are overwhelmingly intended to turn a profit, even if many of them never do. The stakes are enormous: if documentary-making were generally construed to be more to persuade than to profit, the deductibility of expenses incurred in the making of such films would come into question. In a statement on Monday, the groups and their lawyers from the Donaldson & Callif firm in Beverly Hills described a brief they filed in a tax case in which the Internal Revenue Service challenged the business expenses associated with the production of “Smile ‘Til It Hurts: The Up With People Story.” While the groups took no specific position on the facts of the case, they strongly urged that the court back away from a judge’s statement, during a trial in March, expressing an inclination to hold that documentaries in general are intended to “educate and expose” rather than make money. “A judicial pronouncement that documentary filmmakers are not engaged in a profit-making activity would have a chilling effect on the documentary filmmaking industry, as documenatrians would no longer be able to claim deductions for their business expenses,” the groups said in their statement. Several high-profile documentarians contributed to the brief, including Eddie Schmidt, who was a producer of “This Film Is Not Yet Rated”’ Robert Kenner, whose credits include “Food, Inc.”; and Rob Epstein, director and producer of “The Celluloid Closet.”