[Ecommerce] (New York Times) No Free Samples for Documentaries: Seeking Film Clips With the Fair-Use Doctrine

[Thiru Balasubramaniam]

May 28, 2006


  No Free Samples for Documentaries: Seeking Film Clips With the
  Fair-Use Doctrine

By ELAINE DUTKA

THE film producer Alicia Sams viewed "Wanderlust,"
<http://movies2.nytimes.com/gst/movies/titlelist.html?v_idlist=3D323674;227=
049;115917&inline=3Dnyt_ttl>
a documentary about American road movies, as a way of introducing a new
generation to Bonnie and Clyde, Thelma and Louise, and other giants of
the genre. Films like "Five Easy Pieces,"
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_ttl>
"Easy Rider"
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_ttl>
and "The Grapes of Wrath,"
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_ttl>
she was convinced, offered a window into the American character.

The 90-minute documentary, to be broadcast Monday night on the
Independent Film Channel, was also a window into the frustrations of
making a clip-intensive film dependent on copyright clearance, which has
become hugely expensive in the past decade. Initial quotations for the
necessary sequences came to more than $450,000, which would have raised
by half the cost of the IFC film, directed by the Oscar-nominated team
of Shari Springer Berman and Robert Pulcini ("American Splendor"
<http://movies2.nytimes.com/gst/movies/movie.html?v_id=3D278964&inline=3Dny=
t_ttl>).

"Paramount wanted $20,000 for 119 seconds of 'Paper Moon,' " Ms. Sams
said. "The studios are so afraid of exploitation that they set
boundaries no one will cross. Even after the prices were cut, we were
$150,000 in the hole."

Unwilling to pay those fees, IFC's general manager, Evan Shapiro, helped
Ms. Sams pursue another, more aggressive, tack, which may point the way
for documentarians who want to tap movie iconography without paying
studio prices. Its strategy involved some negotiating hardball, backed
up by a willingness to fall back on the tricky legal doctrine known as
fair use.

Mr. Shapiro called in a Los Angeles entertainment lawyer, Michael C.
Donaldson, who drilled him on copyright law. Under the 165-year-old
fair-use doctrine, Mr. Shapiro was told, filmmakers, news gatherers,
critics and educators can access material at no cost if they add
something to it (like a voice-over), don't undermine its value or use
more than needed to make a point. Free speech trumps private property
when a project is in the public interest, a term broadly defined.

"Fair use is the lubricant that allows creativity and copyright law to
coexist," said Mr. Donaldson, a former president of the International
Documentary Association.

Though many public-affairs programmers employ the fair-use concept,
cable outlets =97 the major producers and distributors of documentaries =97
have been reluctant to do so, as budgets for documentaries are low and
litigation expensive. And it's hard to get insurance for "errors and
omissions," the media version of malpractice, unless everything is
licensed.

Mr. Shapiro had vowed never to embark on another clip-heavy film after
Xan Cassavetes's "Z Channel: A Magnificent Obsession,"
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t_ttl>
a costly 2004 profile of a cable network that used scenes from movies
like "Salvador"
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_ttl>
and "400 Blows." Rights had to be purchased separately for home video
and film festivals, and renewed periodically. But "Wanderlust," set in
motion by a predecessor, was a chance to set a precedent.

"We're taking on the fight not only with 'Wanderlust' but also with the
upcoming 'This Film Is Not Yet Rated,' " said Mr. Shapiro, referring to
a clip-dependent critique of the film ratings system set for release in
theaters later this year. "That was made, from the start, under the
fair-use doctrine, as all of our documentaries will be from now on."

Mr. Donaldson began contacting the studios at the Berlin film festival
in February, initiating talks that dragged on for months. Accept $1,000
a title, he said, or IFC will move ahead anyway. Though Paramount held
firm, 13 of the 18 copyright holders accepted the offer, including Sony
Pictures Entertainment, MGM, Universal Studios, Miramax Films and Warner
Brothers Entertainment, whose price was cut from $149,850 to $8,000. In
the end the clips cost IFC less than $50,000. The holdouts advised IFC
to rely on the fair-use argument, which, after viewing the film, they
said they might legally challenge. (Mr. Shapiro is ramping up his
insurance and putting away money in case that happens.)

Copyright law is not being used to stonewall filmmakers but to protect
corporate assets, argues a licensing executive from one of those
studios, who was granted anonymity because of his company's press
relations policy.

Because of the proliferation of clip-generated programming, movie clips
are in great demand. The executive said his department had no problem
when broadcasters use unlicensed sequences to mark the death of an
actor, and it has a lower rate for "nonprofits." But "Wanderlust" is a
commercial product that will, undoubtedly, have a shelf life.

"Fair use is a defense sometimes used, after the fact, to justify the
appropriation of footage without asking," the executive said. "The
producers could have used shorter clips, or even still photographs. If
someone can't afford a Mercedes, that doesn't mean he can't drive."

One copyright holder, James Velaise, the president of Pretty Pictures,
ultimately agreed to license a clip from Fran=E7ois Truffaut's
"Breathless"
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inline=3Dnyt_ttl>
for $1,000, a fraction of his usual asking price. Still, he said he took
issue with IFC's take-it-or-leave-it approach and the introduction of
fair use. Using the argument to save "a few thousand bucks" is
"thoroughly dishonest," he wrote in e-mail messages sent to Mr.
Donaldson's firm. It's tantamount, he said, to stealing. "I was simply
blackmailed," Mr. Velaise said from his Paris office. "And why pay
anything if that lawyer is so sure of the law?"

No such confusion with Kirby Dick's "This Film Is Not Yet Rated." While
"Wanderlust" employed a hybrid approach, fair use was the only option
because of the volume of clips and the provocative subject matter.
Licensing 135 excerpts at an average of $10,000 each would have doubled
his budget, Mr. Dick said. And projects that ruffle the feathers of the
media establishment, he suggested, face insurmountable challenges. Some
licensing agreements prohibit negative portrayal of copyright holders,
he observed. And others preclude the use of the clip in films rated
NC-17, which no one 17 or under can attend. He would be sued for breach
of contract on both counts, he said, because his documentary takes aim
at the studios and carries the NC-17 tag.

The enemy is not the copyright holders but ignorance of available
options, other filmmakers and their advocates maintain. To address the
problem, IFC is formulating its own fair-use guide, and last November,
Pat Aufderheide and Peter Jaszi, communications professors at American
University, coordinated a statement of fair-use practices drawn up by a
coalition of filmmaking groups. Ms. Aufderheide has since met with the
History Channel, Court TV and the Corporation for Public Broadcasting,
among others, teaching them the value of fair use, economic as well as
creative.

"IFC is positioning themselves as hard-charging rebels," she said. "But
by lowering their clearance costs, they're actually canny businessmen."

Because fair-use boundaries are seldom clear, lawyers are needed to
interpret each case, said Prof. Lawrence Lessig of Stanford Law School.
Earlier this month he announced the formation of a co-op of lawyers
based at Stanford that will donate services to fair-use filmmakers.

"Shapiro is fighting the good fight," Professor Lessig said. "But the
danger of drawing a line in the sand is that others will try to erase it."