Moving The Ball: Where We're At On Fair Use

Censorship vs. free expression is an ages-old story, one that still plays on a daily basis the world over. We as Americans do not need to look as far as countries like Turkey (who recently banned Twitter and YouTube) to see that private interests consistently test the freedom and resolve of the people.

Today, with the incredible amount of content that is available and shareable, and private interests that are committed to restricting that flow of information, a new ethical framework had to be built: a framework that pinned down what constitutes fairly utilized content. Kartemquin’s own Co-Founder and Artistic Director, Gordon Quinn, is at the vanguard of the recent revolution in fair use thinking and is a constant, outspoken sage of that revolution’s ideals and practices.

2016 will mark the 50-year anniversary of Kartemquin. Quinn recalls that in the early days fair use was used often and it was “kind of a ‘Don’t Ask, Don’t Tell’ situation, and most of our work went on public television… Then… we lost the right to use it.”

Two weeks ago, Quinn participated in a fair use-focused interview conducted by The Disruptive Competition Project (DisCo). DisCo aims to bring together experts to promote disruptive innovation and constructive competition to society’s gatekeepers.

The recent revolution in fair use thinking can be traced to a shared epiphany that Quinn had with American University’s Professor of Communications Patricia Aufderheide at the International Documentary Festival in Amsterdam, in 2004. Aufderheide saw how absurd and debilitating in both expense and effort that it was for documentary filmmakers to have to license everything, which is essentially the situation as it stood before the revolution (e.g. unwanted, diegetic hospital Muzak had to be licensed for use in Hoop Dreams). Companies that provided errors and omissions insurance for documentaries required licensing for every piece of third-party content that had rights associated with it.

Aufderheide ridiculed the wild scrutiny that this kind of censorship was promoting. She pressed that the community had to stand together for their expressive rights, and that emphasis should be taken away from lobbying Congress and the courts to change or re-interpret the law. Having made all of those efforts before, Gordon, with lit eyes, recalls saying, “Wow, I’m on board.”

So, Quinn, Aufderheide, Peter Jaszi (Intellectual Property Law Professor at American University) and others, crafted a manifesto, the Documentary Filmmakers' Statement of Best Practices in Fair Use, which outlined four situations whereby documentary filmmakers can make solid fair use claims on included third-party content: quotation of content, critique of content, incidental background capture of content, and the provision of short clips for historical context.

The fair use renaissance team spoke at conferences on the principles of the new manifesto, because, as Quinn says, “everyone was teaching it wrong.” Broadcasters, professors, and lawyers had to be convinced that the fair use statement was valid—but the major breakthrough came when one of the insurance companies stepped up and said: “We are ready to insure your fair use claims.”

Quinn is mindful of the wide range of legitimacy in claims, though. He recalls when his fellow producer on Kartemquin’s Refrigerator Mothers, J.J. Hanley, got through to Yoko Ono to seek licensing a long clip of John Lennon’s song “Mother” for the beginning of the film. The context for which the song would be used was not at all legitimate under any of the provisions of the fair use manifesto.

Yoko Ono initially offered an incredibly fair deal on the song’s license, but the price exceeded the film’s wallet—a fax followed, saying: “Mrs. Lennon wants you to have the song regardless of what you’re going to pay."—a sweet nod to the importance of intentionality over money.

The goal of Quinn and the rest of the fair use documentary world is not to outfox for the sake of money or convenience alone. The collective aim is to defend legitimate use of content for the sake of greater understanding. Quinn: “It’s also important to understand that we’re rights holders… also rights users, so it’s really all about finding the right balance.”

In the past, when a Kartemquin film was near completion, “the insurance company would look at it and point out where we need clearances.” Now, lawyers who understand fair use review the film and the instances where fair use is claimed. Then, they tell the E&O insurance company in legal language why its fair use, and that becomes part of the file.”

Less than three years ago, Quinn was having dinner with a woman from PBS’s biography series American Masters. They were hitting it off: shared political values, contacts, ages. Well, fair use came up and the woman says, “Oh, I’ve heard about this, that woman [Aufderheide] came to speak to us. She’s a dangerous person, and she’s going to get people in trouble.” When Kartemquin finished A Good Man (about choreographer and dancer Bill T. Jones) just over a year later, American Masters accepted all of the fair use claims Quinn and co. had made on the film.

“You have to educate people, you have to convince people that this is the way to do it. American Masters had been licensing stuff for years that they didn’t need to license, and so they were very invested in it.”

Quinn recalls that African-American filmmaker Yvonne Welbon left the documentary field, thanks to censorship, whereas Quinn “had just thought her interests had changed.” But at a meeting, he recalls that Welbon said, “These problems was [sic] one of the reasons I stopped making documentaries. I felt that I wasn’t going to be able to say what I wanted to say because of the restrictions of having to license everything.” Since the shift in fair use thinking, Welbon has worked as a producer on numerous documentary projects.

Quinn is currently working on a film called ’63 Boycott. The film revisits people, after over fifty years, who were active in the largest civil rights march in Chicago’s history (if you or someone you know was involved, help identify people on the '63 Boycott website). In response to blatant school segregation, over 200,000 children boycotted school and marched. The film includes footage that Gordon took that day, intercut with participant interviews from the now, as they reflect on the impact that the boycott had on Chicago’s trajectory, as well as their own lives.

The struggle for equity in schools is still a major boon to peace in Chicago. Just last year, 50 schools were closed in low-income, minority-populated neighborhoods. Quinn mentions how “some kid took the three-minute clip off of our Web site, interwove it with things they’re filming today, and made a new little piece on YouTube… We were thrilled. We had not known them. We just saw our footage and said, ‘Hey, let’s go talk to these kids.’”

Quinn goes on to discuss the reality of Kartemquin films being included in other works that claim fair use. “It’s a right, and it’s part of a Democratic society… You have to have these rights, and to have that balance.”

With the shifts in mainstream exhibition (streaming, Blu-Ray, etc.), new battles are being fought to preserve the practicality of fair use rights claims. Quinn says, "It's critical that we be able to access that material."

"Rights aren't very valuable if you can't use them."

By Nehemiah Stark, Summer '14 Intern