A Victory for Documentary Filmmakers
By Kenn Rabin
If you’ve read Archival Storytelling you know how important fair use is to nonfiction filmmakers. Fair use allows you to use an appropriate amount of copyrighted material absent the copyright holder’s permission, in circumstances considered “transformative” (that is, substantially different in intention or meaning than the material’s original use, such as critique or analysis). The “Documentary Filmmaker’s Statement of Best Practices in Fair Use,” from the Center for Social Media [Link here] gives a wider overview of what should constitute fair use. Although devised by and for documentary filmmakers, it’s relevant to other content creators as well.
There’s something new and exciting in the world of fair use: On July 27, 2010, the U.S. Librarian of Congress made a determination under the Digital Millennium Copyright Act (DMCA) which allows you to intentionally circumvent the copy protection on DVDs, video games, eBooks, and cell phone operating systems under certain circumstances. The actual determination, and the public comments that led to it are at: http://www.copyright.gov/1201/.
The decision is being hailed as a breakthrough by fair use advocates, as well as those who believe that protection software unfairly restricts their ability to “tweak” for their own purposes hardware and software they have legally purchased.
We’re going to focus here on the exemptions afforded nonfiction filmmakers regarding DVDs, and the opportunities this gives them. Let’s say you want to use a clip from the 1970s television show, All in the Family, to illustrate a point about how women’s issues were portrayed in popular culture in that era. It’s likely to be a fair use, but how do you get the physical materials to use the clip in your film? If you approach Sony Pictures, they first have to decide to approve your use (they’re likely to turn you down). Then, before they give you a master, they’ll make you sign a contract saying you’ll pay a hefty license fee to them, negotiate fees with the actors, pay guild fees, and clear any music that may be in the clip. In some cases, you may even need to license a trademarked character before they’ll give you a master.
If your use isn’t fair, of course you do have to license and clear all these rights, otherwise, you can’t get E&O insurance, and won’t pass muster with broadcasters or other venues. There’s no substitute for licensing if the circumstances require it. However, if the use is fair, in the past, your problem has always been getting the actual clip to put it in your show. It’s always been illegal to rip and copy copyrighted consumer content for any reason. A legitimate concern by studios over piracy has made it difficult to legally access material for fair use.
This new determination allows you to legally break into a copyrighted, copy-protected DVD, in order to gain access to short excerpts of the content for fair uses in nonfiction projects, as well as certain kinds of teaching and learning. As of July 27, you have legal access to hundreds of thousands of movies and television shows. You do have to be prepared to defend your decision to use DVD content as opposed to a lower format, but every filmmaker wants their project to look as good as it can. Professional standards these days demand visual quality at least equal to a DVD. Blu-ray would actually be more appropriate for theatrical or HD television.
But we’re jumping ahead – the victory is bittersweet. The Librarian of Congress intentionally left Blu-rays and any format higher than DVD out of the equation. Still, you would think that the same underlying principle would apply, so in the meantime, Peter Jaszi, Faculty Director of the Glushko-Samuelson Intellectual Property Clinic at American University (he’s also associated with the Center for Social Media) suggests that you keep notes about specific situations that arise where you would have wanted to use Blu-ray content and why. Then, when the Librarian of Congress issues a new request for public comments regarding a determination, filmmakers (including you) can come forward and make a compelling case for adding Blu-rays to the exemption.
Till then, make good use of this first step, and engage actively in exercising your fair use rights!
Excerpted from Archival Storytelling © Elsevier