May 28, 2006
No Free Samples for Documentaries: Seeking Film Clips With the Fair-Use Doctrine
By ELAINE DUTKA

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 of the genre. Films like "Five Easy Pieces," "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, directed 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, tack, 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.

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This study conducted by Pat Aufderheide and Peter Jaszi of American University's Center for Social Media describes the adverse effects of more stringent copyright and licensing laws on documentary filmmakers. Aufderheide and Jaszi interviewed 45 professional documentary filmmakers in their study. As a result of these interviews, the team found a series of common problems in the rights clearance process: escalating costs, an arduous process and self-censorship as a result. While these filmmakers are seen as hurt by copyright laws, they also understand that they would like their own work to be copyrighted, and in the end do not want to do away with rights clearances, but want to make the process more rational. The report also details the next steps that should be taken to facilitate the clearance process and build greater awareness of filmmakers' use rights.

This article began Wired Magazine’s coverage of the state of Eyes on the Prize and details how the escalating cost of rights clearances have affected the film. The article explains the current situation: rights for Eyes on the Prize began to expire in the mid-1990s, and these expired clearances prevent the film from being distributed on DVD. This already difficult issue is complicated by the fact that the director of the films died in 1998, and the current owners of the production company are not filmmakers. It is estimated that it will cost about $500,000 to re-clear the film’s rights. Several scholars also weigh in on the particular importance of screening this documentary publicly, and its unique social benefit.

As a follow-up to their exploratory report of the effects of copyright restrictions on documentary filmmakers, Pat Aufderheide and Peter Jaszi have collaborated with a group of filmmakers, lawyers and other experts to create a statement of best practices for claims of fair use in documentary filmmaking. This statement will help guide filmmakers in their claims of fair use, and help inform them what material is within their bounds. This statement of best practices will help standardize the process of seeking and obtaining rights in the documentary film world, and assist in helping filmmakers make legally informed decisions. According to the statement, documentary filmmakers should be afforded the same rights as cultural and historical critics in print media.

This article examines the paranoid state of affairs in the modern entertainment arena in regards to copyright. The article adds a new dimension to the issue of protecting copyright by describing a new "spider" that is able to pinpoint the creator of illegal BitTorrent seeds. This extreme crackdown highlights the pervasive "us vs. them" mentality that has kept films like Eyes on the Prize from being distributed. The author calls for a special priority for education documentaries to claim fair use, a move made more difficult by increasingly stringent laws. Digital Rights Management and the clampdown on sometimes-illegal P2P practices such as BitTorrent is a hot topic, since entertainment companies are hoping to keep a tighter grasp on their properties, even if this is at the expense of public enrichment.

The struggle between documentary filmmakers claiming fair use and companies claiming copyright is not new. However, the tension between these two camps has been increasing in recent years. Filmmakers warn that the increasing difficulty of rights clearance will threaten the livelihood of documentary filmmaking as well as the health of the public domain. However, these same filmmakers rely on copyright to protect their works. The article details the rise of Intellectual Property laws in the past 20 years and the changing face of archive houses. After highlighting the situation, the article also offers up potential solutions that filmmakers are beginning to implement.

Spurred on by the publication of the Aufderheide and Jaszi report, Matt Dunne explores the strugglers of documentary filmmakers trying to fund their projects in this article. Dunne expresses the growing frustration in the documentary community at having to face large fees and mountains of paperwork before releasing a film. Dunne also notes that the commercial success of some recent documentaries such as Fahrenheit 9/11, may make the position of documentaries in the legal realm even more precarious. As the difficulties rise for filmmakers, Dunne draws a parallel to recent music lawsuits and the increasing difficulty of fair use claims for academic books.