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 Untold
Stories: Creative Consequences of the Rights Clearance Culture for
Documentary Filmmakers
By Pat Aufderheide and Peter Jaszi
Recommendations
Our recommendations fall into three categories:
• Making the most of fair use;
• Facilitating the clearance process;
• Building greater awareness of filmmakers’ use rights.
MAKING THE MOST OF FAIR USE
Is fair use in copyright worth defending? Its utility
recently has become controversial. Currently, respected critical
analysts of the copyright system such as Prof. Lawrence Lessig (most
notably in his 2004 book Free Culture and his congressional testimony
the Digital Media Consumers Rights Act) have argued that fair use
doesn’t strike an adequate balance in copyright law. The statutory
formulation, they say, is too vague and open-ended to be relied
upon effectively; its real utility is severely limited because fair
use claims can be tested only after the fact of use and then only
when a creator relying on the doctrine is able to retain legal counsel
and willing to expose himself or herself to considerable economic
risk in the event that the defense fails. Prof. David Lange, in
turn, has speculated about the possibility of new legislation that
would supplant fair use and lighten the burden of copyright clearance
on documentary filmmakers by providing them with a special “compulsory
license” (see the webcase of the April 2, 2004 legal panel
from the “Full
Frame” conference.
Evidence in this study suggests, however, that fair
use-based strategies generally have been successful for those who
employ them. We also believe that a general guideline such as the
fair use doctrine, interpreted on a case-by-base basis, offers creators
more opportunity than any more narrowly drafted new legislative
exception. However reasonable and unthreatening proposals like Prof.
Lange’s may be in fact, there is little likelihood that the
motion picture or music industries, who exercise considerable sway
in these matters, would tolerate their enactment.
In any case, filmmakers must work with the tools they
have, and it may be possible to sharpen them. This observation leads
recommendations that we regard as the most important to emerge from
this project.
Development of “Best Practices”
The development and dissemination of models of “best practices”
for the incorporation of preexisting copyrighted materials by documentary
filmmakers, based on collective discussions by distinguished creators
of the ways in which they actually do and reasonably could use such
materials, consistent with the law. The imprimatur of leading professional
associations on such models would provide crucial legitimacy.
We believe that a comprehensive and balanced statement
of this kind on documentary practice and fair use would have the
following purposes:
1) To encourage filmmakers to rely upon fair use
where appropriate,
2) To persuade gatekeepers to accept well-founded
assertions of fair use in place of affirmative rights clearance,
3) To discourage copyright owners from threatening
or bringing lawsuits relating to documentary projects, and
4) In the unlikely event that such suits were brought,
to provide the defendant with a basis on which to show that her
or his uses were both objectively reasonable and undertaken in
good faith. As a practical matter, such demonstrations probably
count more than any other showing that a copyright defendant can
make in asserting fair use.
The “best practices” approach has been
used with some success in other disciplines. A relevant example
is the 1993 Society for Cinema Studies Report on “Fair Usage
Publication of Film Stills,” in 32 Cinema Journal at 3 (1993),
which proved instrumental in persuading publishers to relax their
strictures on rights clearances for frame reproductions and other
stills in film scholarship. A more recent case, somewhat farther
afield, is the library community’s statement on “Electronic
Reserves and Fair Use” (2003).
Nevertheless, it is essential to be prepared in case
of litigation, and that necessity is the basis of our second recommendation:
Legal Resource Centers
The establishment of one or more “legal resource centers”
to provide free or low-cost defense to documentary filmmakers (and
other creators) who have been sued for copyright infringement despite
good faith reliance on fair use; these could be variously housed,
either in combination with the facilities for pre-production legal
advice recommended below, or separately.
As a practical matter, especially in light of what
we believe is the low likelihood of actual litigation challenging
documentary filmmakers practices under a code of agreed-upon best
practices, the legal resource centers we recommend would have to
offer services not only to filmmakers but to a wide range of other
artists and scholars – many of whom work in areas associated
with considerably higher vulnerability to legal attack.. The mere
availability of such free or low-cost defense services to filmmakers,
however, should help to effectively warn off potential copyright
plaintiffs.
FACILITATING THE CLEARANCE PROCESS
Making it easier for filmmakers to do so would reduce
costs and encourage creative work. In particular, being able to
track down ownership of what are sometimes called “orphan
works”—older snapshots, commercial and industrial films,
historic advertising art, for example—would be of great aid.
Two approaches would help:
1) A non-profit rights clearinghouse to which filmmakers
could turn for advice and (where necessary) assistance in identifying
rights-holders. By its nature, such an office could increase the
ability of filmmakers to deal effectively with those rights holders
with whom they must or should attempt to negotiate.
2) A legislative solution to the problem of orphan
works, benefiting not only filmmakers but many other classes of
contemporary creators and scholars. Several models for such legislation
are under discussion.
BUILDING GREATER AWARENESS OF FILMMAKERS’
USE RIGHTS
Filmmakers would benefit from access to reliable information
and expert legal advice generally, and particular in the early stages
of the process through which a documentary project is developed.
Gatekeepers would also benefit from a better understanding of generally
prevailing legal rules. We therefore recommend:
1) An initiative to make pre-production legal advice
more generally available, not only to filmmakers with established
reputations and significant budgets, but to rising professionals
as well. This might take the form of a free-standing advice center;
alternatively, services could be offered through existing legal
clinics.
2) A campaign to educate gatekeepers about limitations
on intellectual property, directed at funders, broadcasters, DVD
distributors, and others. This might take the form of workshops
or other invitational meetings at which various gatekeepers were
brought together with legal experts and legally sophisticated
filmmakers to discuss the problem of the clearance culture.
3) The development of learning materials--a handbook,
website and/or study exercises--to provide a balanced general
account of intellectual property, emphasizing the various use
rights that are built into current legal structures in various
doctrinal areas (trademark, right of publicity, copyright), with
a particular emphasis on documentary practice. Such documents
could be used in university-based film programs and other professional
training activities. Filmmakers-in-training could benefit from
information that, besides explaining rights clearance requirements,
also emphasizes the use rights that creators enjoy under intellectual
property doctrines such as copyright 'fair use,' discusses historical
precedent such as some of those uncovered in this study, and suggests
the use of tools such as the models of best practices recommended
above.
WHAT WE ARE NOT RECOMMENDING
It is important to emphasize that we are not suggesting
that documentary filmmakers, supported by pro bono counsel, should
seek out opportunities for “test case” litigation, at
least at this time. Current case law is unsettled, see Elvis
Presley Enters. v. Passport Video, 349 F.3d 622 (9th Cir 2003).
Testing its limits at this time would be a high-risk proposition.
In our view, if filmmakers ever should choose to do such litigation,
they should first lay down a stronger foundation of agreed-upon
principles and actual good practices before judicial clarification
is sought.
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