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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