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.”
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.
On day two of the Copyright Officeʼs hearings about exemptions to theDigital Millennium Copyright Act (DMCA) , documentary filmmakers and remix artists and their supporters came to Washington, D.C. to show regulators the cost of criminalizing copying of popular culture. (Read about day one where the focus was on fair use and educators here.)
To recap, the issue is: The DMCA prohibits breaking of any encryption on copyrighted digital material, even when you have a legal right to the material inside—for instance, a fair use right. If you can make a strong case for the need to do so during the tri-annual hearings at the Copyright Office, though, you can get an exemption. Today, documentary filmmakers and remix supporters made their case.
They simply objected to the notion of an exemption that potentially included anyone, rather than the narrowly targeted exemption categories that have been used to date. Possibly most interesting to fair use supporters in the two days of the hearing was that no industry lawyers cast any aspersions on the fair use codes that were frequently referenced. Although they repeatedly expressed doubt that fair use could be easily determined, they steadfastly avoided addressing the standards documents that have enabled—as Gordon Quinn boldly said—creative communities since 2005 to reclaim their fair use rights. This is an indirect compliment from representatives of large content holders—which have invested heavily over the years in discouraging makers from employing fair use—to the sturdiness of these codes.
