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Use It or Lose It: An Update from the Frontlines of the Fair Use Movement

Published on July 17, 2007

If you've been reading articles on MediaRights.org or if you attended the Sundance Film Festival or the IFP Market or one of countless significant gatherings of independent filmmakers in the last two years, you have surely heard the buzz around "fair use" and its reemergence as a source of empowerment for documentary filmmakers. Thanks to the work of the Center for Social Media, the Brennan Center for Justice, Stanford University, and a small but growing group of dedicated filmmakers including Kartemquin Films' Gordon Quinn, Byron Hurt, Kirby Dick and Arts Engine's own Katy Chevigny, filmmakers around the country are learning how to exercise their fair use rights. Education and outreach efforts are inspiring filmmakers to include material in their work that only a few years ago they may have removed for fear of litigation or because of pressure from insurers or distributors. A parallel campaign has been directed towards these very same gatekeepers--lawyers, errors and omissions insurers, broadcasters, theatrical and home video distributors--to teach them that fair use is not a quaint concept, but a right that protects filmmakers and should be considered fairly and accurately when deciding to insure them or distribute their work.

Arts Engine Executive Director Katy Chevigny spread the word about fair use at the Atlanta Film Festival.

The Frontlines--Spreading the Fair Use Gospel, One Filmmaker at a Time

When Arts Engine Executive Director Katy Chevigny participated in a 2004 meeting about fair use she had no idea that three years later she would be speaking on panels, encouraging filmmakers to dramatically rethink what copyrighted material to include in their documentaries. "Since Peter Jaszi [of the Intellectual Property Department of the Law School at American University] and Pat Aufderheide [of the Center for Social Media] started doing their work on how documentary filmmakers were working under fair use, my perspective on what filmmakers should have in mind when they're making their films has changed." At a meeting that Jaszi and Aufderheide organized in New York, filmmakers described the lengths they went to avoid having to clear copyrighted material in their films, like bringing a CD of music for a DJ to play in a club to prevent having to clear additional rights. Chevigny explains, "Peter Jaszi was like, 'I cannot believe you all are functioning in this way--essentially taking out pieces of history because you can't get rights.' He explained that this was exactly what fair use was supposed to prevent from happening."

Chevigny took this liberating message to heart and has stayed involved in the fair use movement. "It was kind of like a light bulb went off. We had spent a huge percentage of our budget for Deadline clearing archival footage. We had removed key material, including a clip of Walter Cronkite, an integral part of our footage, because we were told that we would never get the rights to use it. If I had known about fair use law earlier we would have done that whole film differently. The fair use work led by the Center for Social Media has galvanized me to go on the road and have other filmmakers not learn it the hard way like I did."

And go on the road she has, using panels on copyright and public media as opportunities to spread the news to the uninitiated. Most recently, Chevigny traveled to the Atlanta Film Festival where she screened her documentary Election Day and spoke on a panel about copyright and clearances. Chevigny explains, "It was the first time I had been on a panel were other people had a different perspective on fair use than me. They had a woman who worked at a music publishing house and a copyright clearance lawyer." After screening Eyes on the Fair Use of the Prize from the sixth annual Media That Matters Film Festival, a film that demonstrates what's at stake when filmmakers don't exercise their fair use rights, she spoke candidly about the lessons she's learned in the last three years. She explained to the audience, "I'm not a lawyer but a filmmaker. Read the Documentary Filmmakers' Statement of Best Practices in Fair Use and talk to your colleagues...Make sure that you have a case that you can explain in your mind if anyone was to ask you and that you could back it up in a court of law. Be able to explain your rationale for why you're using fair use."

Most of the filmmakers in the audience had heard about the best practices document before but were unsure about putting it in action. One woman had shot an interview in which some artwork was hanging in the background. The entertainment lawyer on the panel said that she should contact the artist and clear the rights. Chevigny countered, explaining that if she were the filmmaker and the art wasn't being emphasized and wasn't hung intentionally to make a particular statement, then she wouldn't clear it.

"That story shows the level of detail a filmmakers feels they have to worry about in the environment they are filming," Chevigny explains. "All the elements in the frame have the potential to be copyright-held. There is so much private ownership of everything. A lawyer can't claim you need to clear everything because it's impossible to clear everything. An observational documentary depicts the world as it is and comments on society. Filmmakers need to get back to their original calling and having clear standards on what is fair and reasonable interpretation of fair use lets them do that."

The Gatekeepers--Lawyers, Insurers and Distributors, Oh My

While filmmakers generally feel empowered by this message, many are quick to remind Chevigny and other fair use advocates that they are often not the ones calling the shots. While they may feel they have a sturdy fair use claim, they often hit a wall when they talk to their lawyer or to an insurance company or potential distributor.

Byron Hurts' Hip Hop: Beyond Beats and Rhymes uses copyrighted images from mainstream media to critique sexism, homophobia and misogyny in hip hop.

Fortunately, people like Professors Peter Jaszi of the American University Law School and Pat Aufderheide of American University's Center for Social Media have been waging a strategic campaign to enlighten these gatekeepers about fair use with a goal of systemically changing the industry, and they've had some considerable successes.

"We've been really pleased to see how quickly many gatekeepers in the field have followed the best practices in the statement, saved themselves money and been able to showcase high quality films," said Aufderheide. She points to the endorsement of the statement by ITVS and by the documentary series P.O.V, to PBS's use of the statement in accepting broadcast of Byron Hurt's Hip Hop: Beyond Beats and Rhymes (which includes a ton of copyrighted footage representing mainstream hip hop culture), to cablecaster IFC's implementing of a fair use policy in deciding not to clear rights for Hollywood film clips in the documentary This Film Is Not Yet Rated and using the statement in negotiations to lower costs in Wanderlust.

Perhaps the biggest single indicator of industry change is the fact that all four of the insurance companies that documentarians in the U.S. depend on for errors and omission insurance (without which most docs can't get on the air) now routinely accept fair use claims. (They used to consider them on a case by case basis with much questioning.) AIG, MediaPro, ChubbPro and OneBeacon all now alert documentary filmmakers to the fact that, with a lawyer's letter of opinion (and in the case of MediaPro a complete shot list), fair use claims will be covered.

Since lawyers are ostensibly hired to represent a filmmaker's best interests, convincing them that fair use is alive and well was an important step. Peter Jaszi, who co-authored with Aufderheide 2004's "Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers" has worked with a legal advisory board including Michael Donaldson, general counsel for the International Documentary Association, to create greater recognition for fair use and the best practices statement. Jaszi's Program on Information Justice and Intellectual Property is now planning to coordinate support for independent filmmakers at intellectual property lawyer clinics at universities around the country.

The fair use message spread further into the legal community when Peter Jaszi and filmmakers Gordon Quinn and Byron Hurt screened film clips and spoke at the 2006 annual meeting of the Copyright Society, an organization of the nation's leading copyright lawyers. The Copyright Society has continued to distribute the best practices statement to lawyers at regional and national convenings around the country. Also Lawrence Lessig, the founder of Creative Commons, an organization that focuses on creating alternatives to fair use, was inspired by the success of the statement and launched the Fair Use Project at Stanford University, which provides pro bono legal defense for documentarians needing fair use counsel.

Finally, outreach efforts are reaching film schools, where the next generation of filmmakers are learning what constitutes fair use. The University Film and Video Association has endorsed the statement and is working on creating language that all film teachers can put into their syllabi to explain how fair use works to aspiring documentarians.

"I think the first eighteen months was the first phase," explains Aufderheide. "And now what's going to happen is what we've seen with insurers. As [respecting fair use claims] becomes more popular as an industry practice, it will no longer be seen as something really courageous, but as something that's smart business practice. And when that happens, then the people spending money for rights that they don't need are going to say 'wait a second--IFC didn't need to spend $400,000 when they made Wanderlust--how come I have to?'"

The Next Wave--International Fair Use and Media Literacy

Eyes on the Fair Use of the Prize has been eliciting interesting viewer responses on YouTube.

With breakthroughs in the insurance and distribution markets, Aufderheide is confident that fair use will continue to permeate the industry and bolster the field. "My own personal belief is that regularizing market practices like this really does benefit everybody. It benefits rights holders too because the cases in which people are making fair use claims are generally cases that they would never collect on anyway...and they are claims that, by definition, do not inhibit the market."

Since many U.S. filmmakers make films that are international co-productions, one of the current areas of focus is fair use abroad. The United States is actually the only country that has fair use as part of its law but the concept has resonance beyond our borders. Agnes Varnum, filmmaker and blogger for Renew Media, participated in a panel on copyright at the International Documentary Film Festival Amsterdam. "There are similar issues but each country has different laws...Where people accuse the U.S. law for being too vague, European laws are so well-defined that there is no wiggle room," Varnum explains. "The thing that was really interesting was that everybody was really excited about our model. They can't do exactly what we did because our copyright laws are different but they can take the idea of getting together and discussing the issues through their professional organizations and coming up with a common language they can use." Efforts to amend copyright law in Canada are heating up as well as the National Film Board of Canada and the Documentary Organization of Canada assessing the field and coming up with ideas to reform the system to help filmmakers.

Another place where fair use advocates are focusing their efforts is in the classroom, where teachers have to worry about what they can and cannot screen when teaching media literacy and other subjects. The Media Education Lab at Temple University, the Center for Social Media, and the Program on Information Justice and Intellectual Property are in the middle of creating a best practices statement like the one written for documentary filmmakers that will provide teachers with guidance. Aufderheide explains, "One of the things that will happen with this code of practice is that not only will teachers be able to assert their fair use rights, but also they will understand the difference between those and their legal rights--the explicit named rights of classroom teachers...They need to understand the difference between the two and it's not clear to people right now." Aufderheide expects to release the research in September 2007 and the best practices statement in September 2008.

As for fair use and the documentary filmmaking community, education continues one filmmaker at a time. Aufderheide stresses, "Every filmmaker is a teacher...When we were doing the research originally, the worst preconceptions and misconceptions we got were not from the legal community but from filmmakers. They would say 'Oh, I learned it in college' or 'I learned it as an intern' or 'I learned it because the PA at the broadcaster told me I had to do it this way.' So when you understand your fair use rights, if you tell other people, you can change reality. You can change what can happen. We know that's possible, because that's what has already happened."

This is the second piece in a two-part series on Fair Use. Read June's piece, Making Good Use of Fair Use by Molly Abrams.

This article is available for noncommercial use under a Creative Commons license. It was originally published on MediaRights.org, a project of Arts Engine, Inc. This notice must accompany the article at all times.