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COPYRIGHT KILLS CULTURE
The Globe and Mail: How copyright could be killing culture
The high cost of getting permission to use archival footage and photos threatens to put makers of documentaries out of business
I'll say it does. This article shows how the definitive documentary on the American civil rights struggle, Eyes on the Prize, may no longer be sold or broadcast because archival footage rights have expired. (See also Wired News article)
A study from American University underscores the problem: Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers
In it's current form, I could not afford to legally distribute or broadcast Blogumentary. I own most of the footage, and thank God for the Prelinger archive - but licensing some of the news footage would be prohibitively expensive for me alone. Some of the footage I'd argue is fair use, since the film is media criticism. But other clips are there to help tell the story. Either way, if I was legally challenged I can't afford a lawyer.
Copyright is killing culture in this country, if you play by the rules. The rules have become a system of stuffing the pockets of corporate media conglomerates, far beyond the original intention of making sure artists get paid for their work. The scale has tipped too far. Push it over, I say.
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January 19, 2005 at 04:26 AM in Film | Permalink
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Comments
Chuck, you are a very informative fellow. This is something I'd totally fight for. Perhaps documentaries should have the same rights as news outlets. Especially for vloggers.
Do vloggers have those rights, do you know? I mean, could we make our own Daily Show in here?
Posted by: Juliah at Jan 19, 2005 5:09:03 PM
Yeah, I believe Fair use applies to all media and not just news. Same with parody. This mofo is wide open!
Posted by: Chuck at Jan 19, 2005 6:27:39 PM
But, where is the line for fair use? I mean, I know a doumentary is not really given that privilege the same way as news stations are or whatever.
Posted by: Juliah at Jan 19, 2005 9:50:56 PM
I don't think Fair Use specifies what media is or isn't covered. Documentary film use is equally valid to news I believe.
The entire "Outfoxed" documentary is plum loaded with Fox News footage they didn't pay for, arguing fair use. Of course Fox *could* sue them (Robert Greenwald & friends), but probably thought better of it after getting egg on their face from suing Al Franken.
Posted by: Chuck at Jan 20, 2005 12:10:54 AM
So do you think you'll have to take a risk, a la Greenwald, or are you going to re-edit the film before you make it more widely available? Or are you hoping a distributor with a good legal team will take the risk for you?
Posted by: dvd at Jan 20, 2005 4:34:50 AM
Some combination of those, yeah.
For example, I think there's a strong argument for my Dan Rather/60 Minutes footage being Fair Use. Hopefully a distributor would agree. It would probably be quite expensive to buy.
Elsewhere, I'm using some news footage (or other footage) that really isn't being criticised specifically, so either a distributor would have to pony up some $$$ for clearance, or I'd have to re-edit those segments.
What I'm most bummed about... the 99% likelihood that I'll have to remove Whitney Houston's "I Will Always Love You." :-) Seriously, it's in there. It probably costs a bajillion dollars to get clearance for that.
Posted by: Chuck at Jan 20, 2005 6:53:10 AM
The copyright act of 1976, as amended in 1992, authorizes any person to make "fair use" of a published or unpublished copyrighted work - including the making of unauthorized copies - in these contexts:
• in connection with criticism of or comment on the work
• in the course of news reporting
• for teaching purposes, or
• as part of scholarship or research activity.
Whether or not a particular instance of copying without permission qualifies as a fair use is decided on a case-by-case basis and depends on four basic factors. These are:
• the purpose and charactor of the use, including whether such use is of a commericial nature or for nonprofit, educational purposes
• the nature of the copyrighted work
• the amount and substantialality of the portion used in relation to the copyrighted as a whole, and
• the effect of the use upon the potential market for, or value of, the copyrighted work.
that info came from a legal law book I found and as you can see it still is unclear and confusing as to what exactly would and wouldn't work. Fair use of complete works even went to trial when the first VCR was introduced to the public.(Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).)
I belive a big factor for potential lawsuits is money. If you're not making money on it (or it appears you're not) then copyright owners aren't going to spend much to get nothing. DJ Dangermouse's famous Jay-Z / Beatles remix got him a stern letter telling him to stop, but he was never sued for a dollar amount, because there were no dollars to get. I think he gave away 3,000 promo copies and that was it, the rest was peer-to-peer downloading.
Regarding profits, clearance fees are based on several issues, including distribution. For example you can get "film festival" licenses very easily and if you make a limited run dvd, calculate the potential profit, then estimate a specific dollar amount value for the copyrighten material based on length - placement - and narrative value, than it's much easier and affordable to negotiate a deal.
I paid a $150 advance to use a :30 sec of Stone Roses "I want to be adored" in a distributed student film and then paid a rolyaly of 10 cents per dvd sold. It took a lot of paperwork, contracts, and 6 months time, but can be done.
As long as you don't blog about it and play ignorant on the law, you could probably distribute on dvd until someone tells you to stop. even if you sell the dvd's for $20 each, you probably still won't make a profit that anyone wan't to chase, because your blogumentary budget shows that you put in about $100,000 worth of your time plus those high price rental fees for your camera. All the money you are now making is simply paying back that debt. :)
good luck!
Posted by: brian dehler. at Jan 20, 2005 10:39:55 AM
Ladies and gentlemen, my legal counsel and confidante, Brian Dehler.
*applause*
Posted by: Chuck at Jan 20, 2005 10:45:57 AM
Yaaay Brian!
The whole fair use thing is one thing I've been a bit concerned about un the background. Kinda worried if Chuck would get sued, because we really don't have any money, but if some a-hole corp decided to make an example of the little blogger docker gettin' too big for his briches well...
Posted by: Lorika at Jan 20, 2005 11:34:39 AM
Which is why you form the LLC (limited liability corporation) to protect yourself. I mean myself.
Posted by: Chuck at Jan 20, 2005 3:43:01 PM
Forming a company would definately help protect you, but as Lorika said, some a-hole could in theory could extend the lawsuit to you as an individual if they really wanted to... i think.
The ol' used-car lot scam is built around the protection of incorporation. Form a company, Rip people off selling crappy cars, get sued, go out of business, then move down the street with a new name and do it all over again. Also hugely popular in the medical device industry.
Many DVD manufactures will also not work with heavily copyrighten material, in fear, that they could also get sued. if an a-hole copyright holder got pissed that a music video from the Spectrum compilation had a shot of McDonald's in the background they could technically sue the band, director, me and my company, the manufacturer, and cheapo records for selling it. That would be so expensive and the main criminal (the video director) probably doesn't have enough money to make it worth while for them, but it could happen. I have everyone sign a contract saying they would defend me if their actions resulted in a lawsuit against me.
That being said, I really don't know what I'm talking about, but hopefully I'm on the right track.
I know an entertainment attorney that might be able to give you advise with Blogumentary, but last time I talked to him I was billed $60 for a 15 minute phone call.
maybe you never sell the dvd's, but with a $20 donation to the website, you get a free copy!
I wouldn't worry about the festivals though, most films don't license anything outright until a distributer wants to pay for it. It makes it less attractive to the buyer, if the there are all the loose ends, but I don't think anyone has every been denied a screening or got in trouble for screening an indie film that didn't have all the rights cleared.
Or so I've read / googled.
Posted by: brian dehler at Jan 20, 2005 5:55:18 PM
Hey, Chuck.. how does one form an LLC? That's on my to do list. :)
Posted by: Juliah at Jan 20, 2005 5:57:33 PM
the how to:
http://www.deed.state.mn.us/bizdev/start.html
Posted by: brian dehler at Jan 20, 2005 6:17:35 PM
Dude, i want *you* to be my lawyer.
Your dad's a lawyer, and that's good enough for me.
Thanks for all the infos.
Technically I am doing the "Donate to Blogumentary and get a FREE MYSTERY GIFT" thing, and THE GIFT IS PROBABLY A DVD *WINK *WINK*
I finally have the case labels printed and everything ready to go. For all you peeps waiting forever - you will not be forgotton, i swear.
Posted by: Chuck at Jan 20, 2005 9:31:01 PM
I enjoyed learning about Blogumentary and the Fair Use issues you are pondering. I'm just finishing PP on my first feature-length doc called 10 mph. It's about two guys quittin' the corporate day jobs and hitting the road for a 100-day trip. One of them rides a Segway from Seattle to Boston. Anyways, a TV station in Denver filmed some aerial footage of the guy on the Segway and it is hilarious, a perfect fit for the doc. I've talked to the TV station and they don't license any of their footage. I think it's fair use for us to use it, but not sure. Any thoughts?
Thanks again for the good discussion.
Posted by: Hunter at May 13, 2005 5:56:54 PM
