Fair Use: Can Kartemquin Clear Up The Clearance Culture Confusion?
By Matt Lauterbach, Spring ‘08 Intern
There is a thin, 8-page booklet that Kartemquin co-founder Gordon Quinn carries in his bag wherever he goes. He has a couple hundred copies, and he loves to just hand them to people. “If I have anything to do with it, it gets into the hands of virtually anyone who’s making movies.”
The booklet, called Documentary Filmmakers’ Statement of Best Practices in Fair Use, is intended to change the relationship between creativity and copyright law. It started with a collaboration between two people: Peter Jaszi at American University’s Washington College of Law and Pat Aufderheide from the Center for Social Media. During an early morning walk in Amsterdam, Pat shared their vision with Gordon. “It was 3 or 4 years ago,” remembers Gordon. “One of the problems that we had at the time is that we virtually couldn't claim fair use for anything. I mean, you had to clear everything. That's what lawyers were telling you, that's what PBS was saying.”
A clearance culture had been building up since the late 1980s, when big companies like Sony, Fox, and Viacom started to get pushy. In reaction particularly to the growth of the Internet, they began making threats. “They were telling people ‘You've got to take this down, you've got to do this.’” Lawyers began to tell filmmakers they had to get rights clearances for everything. Worried about lawsuits, broadcasters stopped accepting work from filmmakers who couldn’t show them all the proper licenses and releases. Insurance companies stopped granting Errors and Omissions Insurance to films that used unlicensed footage, music, or photos. And what’s worst is that the filmmakers themselves were buying into it.
“I was a victim,” admits Gordon. “You know, you’ve been beat up so many times, you start to self-regulate. I mean I was as bad as anybody.”
Gordon can describe a couple instances while making Hoop Dreams when the Kartemquin team erred on the side of being overly cautious. There was the scene where Arthur’s family sings “Happy Birthday” – Kartemquin had to license that song for five thousand dollars. But perhaps even more frustrating was the Muzak:
“There's a scene there where William is being operated on, and his mother is in the waiting room in the hospital. And I remember saying to Steve James, ‘You know, let's get the hospital to turn this music off.’” For whatever reason – lack of time, uncooperative hospital staff, who knows? – that didn’t happen. So the crew went ahead and shot the scene with William’s mother anyway. “And it's got this Muzak in the background, elevator music, who knows what it was. Well, we had to license it. We didn't even want it in our scene. It's an irritation.”
What happens in an over-licensed world where filmmakers have to pay for virtually any use of copyrighted material? Simply put, there are a lot of films you can’t make. “All of a sudden there are films that instead of costing hundreds of thousands of dollars are going to cost you a million, two million, three million…” The insidious consequence of such expensive licensing costs is that filmmakers can no longer freely express their ideas. As Gordon points out, “We’re from a visual age. People speak in images, and people speak with music.” If filmmakers have to buy every image and every song that appears in their documentaries, then the nature of what can be said becomes “seriously constrained.”
“The problem we got into with this clearance culture, where everyone felt that everything had to be cleared, was that it was stifling expression, it was stifling criticism, it was stifling the kind of robust dialogue that is essential for a democracy.”
That’s why, four years ago at the IDFA Festival in Amsterdam, Gordon Quinn and Pat Aufderheide were having an animated conversation about fair use. Pat and her colleague Peter Jaszi had a plan to change the clearance culture. All that was needed was to get a bunch of people together who were being affected and constrained by the clearance culture, with the hope of producing a clear statement of documentary filmmakers’ fair use rights. Gordon loved the grass-roots nature of the plan.
Over the next year, nearly a hundred documentary filmmakers came together in cities across the United States, and Kartemquin Films hosted two productive sessions of dialogue in Chicago. When a tentative statement had been written, it was reviewed and vetted by lawyers who were experts in the field of copyright law. Eventually, what resulted was the Documentary Filmmakers’ Statement of Best Practices in Fair Use. “And it fundamentally changed things.”
To clear up the confusion surrounding fair use, the statement outlines four classes of situations in which documentary filmmakers may legitimately claim fair use. A good way to remember these categories is to think of them as the four “Hard C” words (phonetically speaking) – Critiquing, Quoting, Capturing, and Contextualizing.
Critiquing and Quoting are the easiest to understand. Just like a newspaper might review a new book or a journalist might quote a poet to illustrate a point, a documentary filmmaker should also be free to use text, image, or sounds to critique a work or illustrate society.
Sometimes, however, copyrighted material pops up in the background of a film sequence in a real-life setting. A poster on the wall, music on the radio, or a sitcom on TV is accidentally Captured, and is incidental to the purpose of the filmmaker. In this situation, fair use “should protect documentary filmmakers from being forced to falsify reality.” No need to blot out the image or substitute a different audio track to avoid exorbitant licensing costs.
The last case is the trickiest: Contextualizing, or using copyrighted material in a historical sequence. “If we're going to talk about history,” Gordon explains, “there are certain kinds of things that we have to be able to show in their historical context. We're showing these news stories and these clips, and we're editing them together to show a point, a time in history when there was this controversy. We may have three or four sources, we may have print and radio and television all mixed together, woven together to say, ‘This is what was happening in America at this time.’”
At up to $6,000 per minute, however, archival footage is one of the heaviest burdens to shoulder in a documentary filmmaker’s budget. Gordon suggests that in many cases – when the costs are excessive relative to a reasonable budget for the film; when there is no suitable substitute to illustrate the history; and as long as the copyright owner is properly identified in the credits – fair use should apply to the use of historical material. "Nobody really owns history," a lawyer once told him. “That's a great line,” admires Gordon.
What is so exciting for Gordon about the booklet is that it provides a way to push back against the gatekeepers of the clearance culture – the lawyers, the broadcasters, the insurers. “If you look at old 'standards & practices' handbooks, like at CBS or places like that, there's stuff in there that has nothing to do with the law. The 30 Second Rule – if you use 30 seconds or less, it's okay; if you use 30 seconds or more, that's a problem. Well, there IS no such rule. It has nothing to do with the law. It has nothing to do with any court precedents. It's just something that somebody at some point made up.”
When interpreting the Copyright Act, judges really ask two questions: 1) Is there a transformative quality to the creator’s use of copyrighted material; and 2) Is the amount of copyrighted material limited to only what was necessary to make the creator’s point, and no more? If the filmmaker’s point can be made in under 30 seconds, that’s fine. But if it takes more time, that’s fine too. “If you need more, you use more. But it’s not a license to steal.”
What’s important to the definition of fair use is not how much of the material is used, but how it is used. The material has to be transformed, made into something new, and used for a purpose that is different from its original intent. When this transformative quality is evident, according to Gordon, the case law has been very supportive of fair use claims. “We don't have to go to Congress, it's not about changing the law. The law's a good law. There's nothing wrong with the law. We just have to use it.”
Of course, there will always be vulnerabilities. Even though the law is on the side of creative filmmakers, they can still be sued. Many lawyers will still advise producers to get clearances for any material that is copyrighted, reasoning that to neglect such a precaution would be dangerous and risky.
Gordon rolls his eyes.
“Look. You don't understand our business. We take risks. It's a risky business. You know, we go to risky places, we take risks all the time, and this is just another way of asserting our rights in this area.”
One of the things Gordon has learned is that the chances of a filmmaker being sued by one of those big companies – Sony, Fox, Viacom – is pretty much nil. “They will threaten you. They will tell you, ‘Do what we say, or we will sue you.’ But if you just say, ‘Drop Dead,’ they won’t sue you. Why aren't they going to sue you? Because they have very high-priced lawyers who at the end of the day are going to say to them, ‘You know what, we don't want to take this to court because we'll probably lose.’”
Armed with a copy of the Fair Use Statement in his hands, Gordon can now confidently challenge any broadcaster or insurance company that is reluctant to back Kartemquin’s films. “When you come in with the statement, you can say ‘A hundred people have met from all over the country. It’s been vetted. Here’s the list of lawyers that it’s been vetted by. They’re the top experts in this field. We’re not gonna take ‘No’ for an answer.’”
And then there’s the other side of the coin. Gordon is not solely a rights user – he is also a rights holder. Kartemquin Educational Films holds numerous copyright claims of its own, and certainly doesn’t want other filmmakers to have free reign over its material.
“Of course we are very concerned about the rights in our films. And one of the reasons we're so concerned is that our films are very intimate stories within peoples' lives. So we don't license our material to stock-footage houses, for instance. We just don’t do it. I can't have somebody who made a documentary with us all of a sudden seeing themselves in a commercial for something.”
Something like that scenario nearly happened to the title character of an early Kartemquin film called Winnie Wright, Age 11. Another film company was making a documentary about women who had illegal abortions in the late 60s and 70s. The director was looking for images of the culture of the time – political demonstrations, activists, and the like – and asked to use some footage from Winnie Wright. Gordon said “Okay,” but he wanted to see a rough cut before they went public with the film.
“So they come back to me, and they've taken an image from our film. And I'm like, ‘Well wait. The way you've cut that, the way you’ve juxtaposed that with the demonstrations, you're implying that this 11 year-old girl had an abortion!’ I said, ‘That’s not true. You can't do that.’ In other words, I do have an interest in and a concern with how our work is used.”
Luckily, the other filmmakers saw his point and agreed to fix the problem. But what if they had stuck with the edit and claimed fair use? In that situation, Gordon supposes, the recourse would have been in saying that they were doing material harm to Winnie Wright. “I have a responsibility, a moral obligation to make sure that the material is not used in way that is counter to what I intended, or what she allowed me to do by coming into her life.”
Gordon acknowledges that there is a bit of a contradiction between being a rights holder and a rights user. “I understand there's some complicated questions there. Because of course [the filmmakers at Kartemquin] use things out of context when we use images too. We do all kinds of things to make them into something new, and they're not being used in the way that they were originally intended. So I’m on both sides of the issue.”
In striking that delicate balance between a creator’s rights and responsibilities, Gordon looks to the United Nation’s Universal Declaration of Human Rights for inspiration. In Article 27, the document sets up a dialectical relationship between two entitlements:
- Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
- Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
“It’s an absolutely brilliant statement of exactly what we're talking about,” Gordon says rapturously. “It's this document that everyone knows, and it's like ‘Oh my god. There is the thing that's at the heart of all this.’”
For more about Copyright & Fair Use in Documentary, visit the Center for Media and Social Impact.
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