Doc-makers get specific about copyright fair use

By Steve Behrens

Friday afternoon, things changed for producers who need to use somebody else’s footage and music in their documentaries.

Clearing rights may still cost a lot and take too much time, as in the past, but Patricia Aufderheide and Peter Jaszi believe producers now have a solid rationale for not paying excessive and confounding fees for copyrighted materials in certain cases.

Louis Armstrong image "Yes," Mae West image, "No."

How long is fair? One producer used quick fair-use "quotes" from Louis Armstrong in a doc on Stephen Foster's songs. But another producer gave up plans for longer Mae West segments, which would have required buying footage.

On Nov. 18 [2005], the Association of Independent Video and Filmmakers, the Independent Documentary Association, public TV’s Independent Television Service and the series P.O.V., and other media groups endorsed a Statement of Best Practices defining four kinds of situations when a producer, under the “fair use” provisions of copyright law, need not pay for a film clip, a shot of a painting or a snatch of music.

Aufderheide, director of the Center for Social Media at American University in Washington, D.C., and Jaszi, an intellectual property expert at the university’s law school, convened groups of experienced filmmakers around the country to look closely at the producers’ (and their lawyers’) working definition of fair use.

The statement hammered out by producers contains none of the outrage of many Internet-generation consumers who thumb their noses at copyright laws. Documentary makers, after all, want to protect their own work from piracy and immediate devaluation.

Because the statement is based on a fair-use definition consistent with recent court rulings and filmmakers’ actual fair-use decisions that weren’t challenged by rights owners, it should prove a secure guide for producers, Jaszi said.

Suits over fair use are rare anyway, he said, and almost always decided in favor of producers, but the statement would discourage marginal lawsuits because a judge would routinely determine whether the producer acted reasonably and in good faith within general practice in the field. That’s what last week’s statement describes.

Michael C. Donaldson, general counsel to the International Documentary Association, copyright textbook author and an advisor to the project, said publishing the statement is a “giant leap” for producers. He hopes it will reintroduce the idea of fair use to program decision-makers and other “nervous folk who want much more [copyright clearance] than the courts require.”

“What all these people need is less ambiguity,” says Aufderheide. The statement aims to help on that score. The Documentary Filmmakers’ Statement of Best Practices in Fair Use highlights the most common situations where producers have fair-use rights:

  • “Employing copyrighted material as object of social, political or cultural critique.” Whether the documentary comments directly on the copyrighted material or parodies it, fair use generally applies, the statement says, so long as the producer isn’t just taking the opportunity to use much of the material for free.
  • “Quoting copyrighted works of popular culture to illustrate an argument or point.” The producer uses the material for a new purpose, with proper attribution, and doesn’t take a free ride on the merits of the original, or use more of it than necessary, or use it simply to avoid the expense of coming up with something else.
  • “Capturing copyrighted media content in the process of filming something else.” The producer unintentionally catches incidental sounds or images, such as pop music playing on the radio in the background or a family singing the copyrighted “Happy Birthday” song. Fair use can’t be a cheap way to cop a soundtrack.
  • “Using copyrighted material in a historical sequence.” The producer must show that a certain image, music or speech is crucial to tell a story from history, and there’s no suitable substitute and getting permission to use the work is impossible or excessively expensive compared to the doc’s budget. However, the producer can’t be simply building a doc around the material to exploit it, using more than necessary to make a point, using it without attribution or relying disproportionately on this single source.

[Examples of each of the four categories are posted online by the Center for Social Media.]

Producers could cite fair use in many less common situations and sometimes use more than one of these rationales at once, Jaszi said.

Because fair use is a stranger to some producers, the statement takes pains to argue against common misconceptions. To have fair use, for example, a documentary doesn’t have to be exclusively high-minded, unpopular or boring. Indeed, it can be entertaining or even commercially successful, according to the statement.

The statement also says a documentary producer can claim fair use even after trying and failing to negotiate rights. Perhaps it was worthwhile for the producer to try for copyright clearance at an affordable price even if it would be legal to assert fair use.

What’s the usual?

Documentary filmmakers work under tighter copyright constraints than academic writers, reporters and artists in many fields, according to Aufderheide and Jaszi.

Historians quote each others’ work. Artists reinterpret images created by others. Hard-news journalists routinely use images, footage and music without copyright deals. But filmmakers have been stymied by costs and hassles.

Journalists get away with it simply because they routinely used material without asking, Jaszi says, and their hasty ways became standard for the field.

Film historians once feared the wrath of Hollywood if their articles were illustrated by still images from movies, Jaszi says, but the Society for Cinema and Media Studies harnessed fair use and successfully changed copyright practices on that narrow issue [report in Cinema Journal, 1993]. Last week’s fair use statement takes a similar approach with a broader objective.

Too often producers don’t employ fair use, omitting material from their programs or paying excessive fees because they or their bosses, program buyers or other gatekeepers are intimidated by copyright holders’ overreaching claims, according to Aufderheide and Jaszi. Especially important are the views of insurance companies that sell the errors and omissions policies that producers need.

Getting the E&O insurance carriers to acknowledge a definition of fair use will be crucial, says J. Stephen Sheppard, an advisor to the fair use project and a copyright attorney who represents producers and media companies. Insurance companies understand risk because they’re in the business of assessing it, he adds.

Fees are rising and fair use is employed less often than 20 years ago, Jaszi says.

Filmmaker Gordon Quinn said in a report from Aufderheide and Jaszi that rights cost $100,000 more than expected for The New Americans, a PBS series on contemporary immigration, and the series paid a creative toll as well.

“That $100,000 is after we made all kinds of compromises,” he said.

John Sorenson, a Washington producer, said at the press conference last week copyright restrictions teach filmmakers to see the world through the rights window. He found it “deadening” to avoid topics unless he knew he could acquire rights without a struggle.

For Aufderheide and Jaszi’s project, the next task is to spread word about the statement, persuading nervous producers and their lawyers, public TV and other gatekeepers, and insurers that fair use is safe when used selectively. Some production chiefs still insist that producers clear rights for everything in a film, according to the fair use project.

The Rockefeller Foundation and the MacArthur Foundation, which funded the project, will provide additional aid for outreach to these producers and gatekeepers, as well as experimentation with legal clinics at law schools, which can give free advice to filmmakers before and during production, when they need to make rights decisions.

Let’s not get greedy

Jay Fialkov, deputy general counsel at WGBH in Boston, deals with producers’ fair use questions every week and routinely tutors them on the concept before they start acquiring materials.

In making the American Experience profile of Dr. Martin Luther King Jr., “Citizen King,” WGBH’s producers relied on fair use for some of King’s materials but recognized the rights of his estate in others, according to Fialkov. There has been no conflict since broadcast, he adds.

When Fialkov trains producers about fair use, he advises them that fair use covers only as much of a copyrighted work as required for their purpose. “Producers might sometimes prefer to keep more of it for entertainment value,” he says. “In our view, fair use might not extend so far.”

WGBH notably relied on fair use in the 1999 series Culture Shock, including montages of short clips that qualified as commentary, says Fialkov. This fit into the concept of fair use because the series itself commented on trends in the popular arts. Even so, when producers found that extensive footage of Mae West was not available on acceptable terms, they switched the focus of an episode so they could use more material on screen.

Donaldson likewise advises self-restraint, telling clients employing fair use to include only as much copyrighted material in their programs as necessary “and not one second more.”

The only producer who has lost a lawsuit over fair use in recent years, Donaldson says, was one with considerable chutzpah who compiled long clips of Elvis Presley performances into a documentary and claimed he did not have to pay for rights.

“That was a good case to lose,” says Jaszi.

Licenses too short or narrow

Wider reliance on fair use won’t solve every copyright problem that producers face.

Getting permissions from copyright owners is hard enough, and keeping them is harder, because many are unwilling to negotiate prices for long-term rights, fearing that the price of rights will rise.

For years, high copyright costs have prevented broadcast or video sales of both of Henry Hampton’s famed Eyes on the Prize civil rights history series. Rights expired for archival footage and other materials. Admirers of the series are working to bring them back into distribution, according to Orlando Bagwell, a producer who worked on the series and is now a grantmaker at the Ford Foundation. [PBS later said the series will come back to TV in fall 2006.]

The 6.5-hour West Virginia history series made for West Virginia Public Broadcasting also was lost for a while but is being rescued.

Re-upping expired broadcast rights fell to the West Virginia Humanities Council, which had inherited ownership of the series from a nonprofit that was set up to produce it, says Craig Lanham, director of TV programming at West Virginia Public Broadcasting.

But broadcast rights don’t cover rights for home video or classroom video versions of a program, and educators wanted to get more copies of the state history series after rights for the first 10,000 were gone. Steve Chapman, the state network’s purchasing administrator, cleared the video rights, making dozens of deals — paying $200 to $300 to show a painting in the series and hundreds of dollars to play a piece of music.

Chapman is now struggling to make deals with a few remaining copyright owners, including three music publishers that don’t agree about their split ownership of a single song. Other owners have not replied to his inquiries, requiring the network to delay its video release date three times this year. Now Chapman hopes to publish early in 2006, but he’s still waiting for phone calls to be returned.

To hold down the upfront copyright costs of making more videos, the new deal will allow West Virginia Public Broadcasting to pay a separate fee every time it makes 1,000 more copies. Some copyright owners said this could go on forever, but others would sign rights for just seven or eight years, Chapman says.

A major rights problem for WGBH, says Fialkov, is securing rights for new media that are only beginning to develop.

Decades ago, it was enough for public TV to buy broadcast rights, he says. Now he has to wonder whether to nail down cell phone rights, too. When possible, WGBH tries to buy rights for all media in perpetuity, he says, but rights owners fear they’ll underestimate what their material will be worth in emerging media.

Fialkov is interested in the new Digital Media Project starting at the Berkman Center for Internet & Society at Harvard Law School, which will look at ways copyright law restricts classroom education as well as the informal education that public TV provides.

William McGeveran, a fellow at Berkman, says the study will explore what policies could serve the interests of both copyright owners and the educators who use their materials.

In recent months McGeveran has followed the progress of the fair use project at American University.

“Peter and Pat have done such a good job starting off by building this statement of best practices — not as a wish list but as a reflection of talking to many people out in the field,” he said.

RELATED LINKS

Full report, 12-page PDF, of “Documentary Filmmakers’ Statement of Best Practices in Fair Use,” Nov. 18, 2005. Online examples of four kinds of fair use. News release.

Aufderheide and Jaszi took a wider-angle view of documentary filmmakers’ rights problems in the report “Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers.” Executive summary or full report (printable 35-page PDF).

For documentary filmmakers, rights to some works are unarguably free, says Jaszi.

Faculty bios of Aufderheide and Jaszi.

American University’s Center for Social Media is also undertaking a major study on The Future of Public Media with backing from the Ford Foundation.

Society of Cinema and Media Studies endorses fair use project at American University. The society’s 1993 statement on usage of film stills is a forerunner of the AU project.

Digital Media Project at the Berkman Center for Internet & Society, Harvard Law School.

PBS announces it will bring Eyes on the Prize back to TV in fall 2006. The Ford and Gilder foundations covered the cost of broadcast rights.

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