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Fair Use: use it or lose it


Exercising your fair use rights is easy! Here is Stay Free!'s reenactment of the deleted Mad Hot Ballroom scene. You won't get arrested for putting this in your movie (but your movie will suck). Courtesy of Steve Lambert

I want to point out something about my Mad Hot Ballroom interview because there is a lot of confusion about these kind of copyright disputes. I've said it before but I'll say it again: there is no law requiring filmmakers to clear everything that these filmmakers cleared. The Mad Hot people did so on the advice of their lawyers and lawyers as a rule are extremely risk averse. Their conservatism may seem to benefit their client in the short run, but in the long run everybody (except the Warner Chappells of the world) lose out.

Indie filmmakers don't have much power in using copyrighted works, but they do have fair use. And since so much of intellectual property practices are based on habits rather than laws, when it comes to fair use, we've got to use it or lose it. Copyright reform can't be done by activists and legislators alone. Creative people have to be willing to stand up for the First Amendment by standing up for fair use.

I don't mean to pick on the Mad Hot folks; they did an awesome job on the movie. But the excised clip featuring Ronnie's soundbite is a perfect example of spineless lawyering run amok. The chance of Warner Chappell actually suing over this is close to zero. They're not morons. In the unlikely event that Warner Chappell did sue, our filmmakers have to spend a couple of painful years in court. True. But their fellow documentarians and artists couldn't have asked for a better test case.

Related post (12/21/05): Documentary films and fair use.

Posted by carrie on 06/22/2005 | Permalink


Sing it, Carrie! Stay Free Magazine and the copyright reform movement gave me the courage and inspiration to start animating my movie in spite of not getting explicit permission from the huge corporation that doesn't even know it technically holds copyright to music it abandoned decades ago. Everyone says "oooh, you better get permission! Change the music or you'll get in trouble!" but I don't think so - and fine with me if I have to defend my film in court in order to set an important precedent.

Posted by: Nina | Jun 22, 2005 12:23:54 PM

I'd be a bit careful on who exactly to blame for the rights and permissions issue. This film is distributed by Nickelodeon and Paramount Classics. I'm quite positive if rights had not been cleared to the extent that they did, Nickelodeon would not have touched it with a 10 foot pole or insisted the producers only come back to them after rights and permissions have cleared.

Also, be aware that in the case of such a musically focused film as this, the selling point of the soundtrack is a big deal.

Since Nickelodeon/Paramount are both Viacom Companies. And Viacom is notorious for their paperwork and need for due dilligence, this all makes sense. Add the soundtrack factor into the mix and it makes even more sense.

I think the producers could have claimed fair use and made a small sleeper hit that would be relagated to the ghetto of indie classic that is only seen on PBS or IFC. But in the end I think they wanted to get all their ducks in a row so they could actually have a work that could be distributed nationally and internationally.

Not an excuse for excessive litigation and rights/permissions issues. But from a realistic standpoint, this all makes sense. Pragmatically they just had to do what they had to do to get the film out. And while copyrigt reform is a great idea, I can't imagine anyone producing a work on this caliber and risking it as (frankly) a pawn in someone else's copyright debate.

Posted by: Cat Astrophe | Jun 23, 2005 1:39:51 AM

I realize the above sounds like I'm criticizing the filmmakers but I went out of my way to avoid doing that. (I shouldn't have blamed lawyers either but that's another story.)

Obviously, the problem is with the system and not individual players within in. But your claim that this is "someone else's copyright debate" is precisely the problem -- most people in the thick of this system (I'm assuming you're in the film biz) don't feel any obligation to point out how fucked up it is or to lift a finger to change it. As Sewell herself suggested, this copyright stuff is KILLING documentary films. How does that make it "someone else's debate"?

Posted by: Carrie McLaren | Jun 23, 2005 10:40:28 AM

None of this actually kills documentary filmmakers in any way. Anyone can make any film they want. But if they want it to be profitable and get distribution, they need to do what these filmmakers have done.

And it make's it someone else's debate when you take on a filmmaker who has made a clear choice in how to approach the system and--essentially--berate them for their individual choice in doing what suits their needs.

The couching of this all in saying "I realize the above sounds like I'm criticizing the filmmakers but I went out of my way to avoid doing that." is really eye-rolling. You're clearly criticizing the filmmaker with kid gloves. It's as if you somehow wish you were there in the pre-production process to advise the filmmakers how you believe they should have approached this rather than truly understanding where they came from. Completely ignoring that other people might agree with you but might still want to mak a 'deal with the devil' becuase it suits their needs.

Posted by: Cat Astrophe | Jun 23, 2005 3:38:33 PM

Fair use is indeed a potentially powerful tool for freedom of expression! Filmmakers are now shaping a statement of best practices in fair use, to let filmmakers know what is fair and reasonable practice in quoting other people's work without licensing. That statement will be completed by next fall, perhaps even by October. The report Untold Stories explains why that statement is necessary, and the FAQ on the Untold Stories website explains the statement. Here's the URL:

Posted by: Pat Aufderheide | Jun 23, 2005 4:30:02 PM

A lot of the pressure to obtain clearances comes from distributors. It's not part of case law or even duelling interpretations of fair use; it's a contractual obligation that's baked into the agreement when a filmmaker sells her film.

A film without clearances, and filmmakers which cannot indemnify distributors against the any potential claims of infringement will find herself essentially locked out of anything but the festival circuit, and even that's sketchy.

Net result: if you're going to pursue a different approach to fair use, you're probably going to have to pursue an alternative distribution strategy, too. So get your web dvd store ready.

Posted by: | Jun 23, 2005 9:27:14 PM

Cat: "It's as if you somehow wish you were there in the pre-production process to advise the filmmakers how you believe they should have approached this rather than truly understanding where they came from."

I don't think Carrie's criticizing the filmmaker. I DO think she is pointing out the urgent need for filmmakers to fight this system. The article identified an opportunity to fight (and win) that the filmmaker missed. By pointing this out, other filmmakers can learn to spot - and take advantage of - similar opportunities. We are reminded that if we do care about copyright and freedom of speech (and this being the Stay Free! blog, most readers of the article do) there are actions we can take, especially if we're doing creative work.

Of course not everyone's a fighter. But we desperately need fighters right now. Again I remind you this is the Stay Free! blog, copyright issues are naturally the primary focus of many articles here. I have no idea why you're taking this article as some kind of attack on the filmmaker; it is not.

Posted by: Nina | Jun 23, 2005 9:27:32 PM

Greg wrote: "A film without clearances, and filmmakers which cannot indemnify distributors against the any potential claims of infringement will find herself essentially locked out of anything but the festival circuit, and even that's sketchy."

Filmmakers are required to indemnify distributors whether they have clearances or not. Yes, distributors are part of the system; requiring clearances for everything implies NOTHING is in the public domain. Some music you can't get clearances for, because it is indeed in the public domain. I'd like to read more stories about films utilizing public domain art and music - how do they deal with clearances when there's nothing to clear? Of course corporations constantly try to claim ownership of public domain works; some image archives claim if they digitize an image that was created 200 years ago, the copyright of the original work belongs to them!

We have to stop paying for what already belongs to us. Whenever an artist pays a corporation for public domain works, a terrible precedent is set. It really is a "deal with the devil."

Posted by: Nina | Jun 23, 2005 10:04:01 PM

I have brief news footage of Dan Rather denying, and then apologizing for, the "Rathergate" memos. It's crucial footage to my documentary on blogs, and in the context of media criticism - exactly the sort of thing Fair Use exists to protect.

And yet, if i wanted to get a distribution deal, i'd likely have to pay thousands of dollars to officially license that footage, even though it's Fair Use. Other doc filmmakers have confimed this, having been in those shoes.

I'm sorry, but that's completely fucked up.

Posted by: Chuck Olsen | Jun 24, 2005 4:38:38 AM

First-honest alert-i do music licensing for some sort of a living.. that being said, what if we were talking about a line from, oh i don't know, a Spoon song-don't we think the dude from Spoon should get paid for the use? Even if it is "just a documentary." Please note in this time of reality tv, everyone is making a documentary! Docs can make money as well these day, so that guy from Spoon should get paid too!

Posted by: Lyle Hysen | Jun 24, 2005 9:55:41 PM

"what if we were talking about a line from, oh i don't know, a Spoon song-don't we think the dude from Spoon should get paid for the use?"

If the director uses the music as a soundtrack, yes. If someone is playing the song in the background, with the crappy audio that implies (huge difference in sound between laying on a clean track in the editing room and getting distorted noise in the field) then in some cases NO.

Suppose a documentarian captures some criminals carelessly indicting themselves in the field - say they're in my neighborhood, where you can't get away from the constant droning of boomboxes and car stereos. Should the documentarian pay the corporation that controls rights to whatever noise happens to be audible in the background? The copyright cartel says "yes," making them enemies of free speech.

Who would bother making a doc about my neighborhood, knowing they could never release it without paying through the nose? You can't get my neighbors to stop blasting - believe me, I've tried.

In the current system, a cop can say something like, "I want all bicyclists to die" without fear of a documentarian's camera in his face - all he has to do is have another cop say "everybody dance now" and the public will never know.

Lyle, I can't believe you don't see a difference in these "uses" of music. Laying down a track in the editing room is a world apart from what we're discussing here. We all agree real soundtracks should be licensed (unless the music is in the public domain). Copyright reformers aren't pushing for no protection; they're trying to bring reason to a system that chills speech and stifles information. We ALL want creators to be paid for their works, and we are not opposed to legitimately licensing music.

Posted by: Nina | Jun 25, 2005 10:41:35 AM

Nina, I wasn't making a difference in the use on purpose... I was saying if SPOON was playing in the back of someone breaking into your apartment in the documentary about people breaking into your apartment, then SPOON should get paid.

Now, that being said, I think getting SPOON to agree to this use for less money would be easier then Warner Chappel... Docs in general do get a lower fee then studio films, well by most licensing people.

I've worked with both kinds of docs, and sometimes when a film gets picked up for distribution the distributor agrees to pay for the use of the song.....

Posted by: Lyle Hysen | Jun 25, 2005 10:59:40 AM

"I was saying if SPOON was playing in the back of someone breaking into your apartment in the documentary about people breaking into your apartment, then SPOON should get paid."

And if the filmmaker can't pay, the information should be suppressed. Do you mean that?

Posted by: Nina | Jun 25, 2005 1:17:48 PM

why can't the filmakers pay? if the film gets distribution, they should set aside the funds to pay SOMETHING to the bands.

Posted by: Lyle Hysen | Jun 25, 2005 5:17:43 PM

Lyle asks:"why can't the filmakers pay? if the film gets distribution, they should set aside the funds to pay SOMETHING to the bands."

1. Because the copyright cartel includes distributors, who won't distribute a doc without clearances of everything first. Catch-22. Rarely do distributors pay for licensing on behalf of indie filmmakers. Broadcasters almost never do.

2. As technology improves and more people aquire the means of doc production, budgets go down. WAY down. Current copyright fees are based on the pre-DV budgets of 20 years ago, when film itself was so expensive rights weren't such a big deal in comparison. Far fewer docs were made back then. Today vastly more projects compete for the same pool of money. Like it or not, the world has changed.

3. Most indie films don't make money, even with distribution. Since you seem to think filmmakers are rich as long as their work is distributed, let me say that again: MOST INDIE FILMS DON'T MAKE MONEY, EVEN WITH DISTRIBUTION.

4. Corporate fees charged for documenting reality chills free speech. See the rest of Stay Free! Magazine and its links for the full explanation.

5. Distorted music playing in the background does not help sell the film; the filmmkare is not profiting from the sounds' inclusion, nor is the filmmaker exploiting the musician. If the filmmaker were able to remove the sound, they would. Does the sounds' inclusion actually harm the musician? I invite you to argue exactly how, then we can compare it with the harm of current copyright policy to the public at large.

You'd think there'd be laws allowing filmmakers to use clips under certain circumstances, wouldn't you? Guess what - there are! They're called called "fair use." The problem is, corporations demand payments anyway (you can sue for anything, whether you have a solid case or not) and filmmakers are too scared to stand up for their fair use rights. So you see, Lyle, the law itself doesn't demand corporations and agents collect "SOMETHING for the bands" (oh how they love to put the face of deserving artists on their own greed - how much of those exorbitant fees do real authors ever see? That's a whole 'nother discussion.) Spineless lawyers and frightened filmmakers pay even though they don't legally have to, because nobody wants to be sued. It takes money to defend yourself in a lawsuit, even a frivolous lawsuit. Corporations have a lot of money; indie filmmakers don't. So the system perpetuates itself through threats and intimidation.

Posted by: Nina | Jun 25, 2005 8:30:34 PM

So do you really think, that at the end of the day, if a band (not a publisher or etc), doesn't want to have a song in the back of your documentary about people breaking into your house that the band has to leave it in? Regardlesss of how important that scene is to the film, I'm sorry to say, it really should be up to the band....

I know very very well that when a film gets distribution that it doesn't get a ton of gelt! But it does seem that they should simply at least make an effort to pay the music that is used, regardless if they planned it or not... The film is now in movie houses, people are paying $10 a pop to see the picture, why shouldn't the band be getting paid?

It seems you are also blurring the line between docs and non docs, but in the case of a feature, the producer and director have figured out a way to pay for the catering, the make-up people etcetc. Have you ever noticed that song credits are the last thing to appear on the credit roll of a movie? That just shows how important filmakers really feel about the music....I guess since everyone else is figuring out ways to rip off bands these days filmakers should have a crack at it as well....You must know that i work with mostly indie musicians and I've seen their face when I tell them that a filmaker "can't" pay them....

And speaking of fair use-every time a song gets played at a sporting event that is shown on TV, that is considered "fair use", and so the bands aren't getting paid. Now is that fair?

Posted by: Lyle Hysen | Jun 26, 2005 12:10:34 AM

Lyle: Musicians are not poor because of documentarians; you are so barking up (and trying to shake down) the wrong tree here. Indie musicians and indie filmmakers are natural allies, not enemies as you have presented them. Many musicians are pushing hard for copyright reform - ever hear of Negativland? Many musicians are fed up with being poor because of their exploitation by the corporate music industry and the same outdated business model that screws small filmmakers. I frequently work with indie musicians, we bypass agents and corporations and collaborate directly. Signed musicians have encouraged me to "fly under the radar" rather than pay their work's copyright holder, because they know they'll never see a penny.

The same technologies that expand user access to music and undermine the "control" copyrightholders once felt entitled to, are also enabling artists to bypass this outdated system. Check out the Electronic Frontier Foundation. We're in a state of transition now. The old regime is clinging desperately, lashing out at any cost to retain a control over speech they'll surely lose without government intervening on their behalf (and the current administration has its own reasons for wanting to torch the First Amendment).

Join us, Lyle! Even though you don't value free speech, if you care about musicians' welfare, we're on the same side.

Posted by: Nina | Jun 26, 2005 9:21:16 AM

join you? i should be the posted kid! one of the reasons i do what i do was that i put out a record in the 80's that had a uncleared sample, that then was discovered. The record got deleted, and my ex-band is still in debt to the label due to legal fees, and the record will never see the light of day again.
So, I'm trying to fight the good fight to make sure that bands aren't given misguided advice like I was.......

Posted by: Lyle Hysen | Jun 26, 2005 10:19:27 AM

Filmmakers were allowed to include some incidental music in their movies until a few years ago, when the rise of digital technologies galvanized the music industry and Hollywood to fight to expand copyright law. In other words, the idea that a band has a "right" to control -- and charge for -- even scarcely recognizable appearances of a song is a very recent one. The argument Lyle is making is largely a response to sampling; the music industry wants the same restrictive controls in the film world as they have managed to win for music sampling.

If you think these rules benefit musicians, I'd recommend reading an interview we did with Chuck D and Hank Shocklee of Public Enemy about how copyright obviated the kind of records we now think of as hip hop classics (early PE, Ice Cube, Jungle Bros., Beastie Boys etc.). Even the most successful groups can barely afford to clear the dense, sampled soundbeds in those earlier works.

An economic model where filmmakers have to clear even incidental sounds is one where every use of copyrighted fragment must be policed. This is where Lyle's argument about helping artists falls apart. If Britt Daniel wants to refer to New York City or some brand-name good in his lyrics, must he run that by the City govt, or by the company in question? We're talking about different media here so it isn't exactly parallel, but what you (Lyle) are asking of filmmakers is similar.

Posted by: carrie | Jun 26, 2005 6:44:38 PM

I was looking at making a doc on ventriloquists and one guy's whole act was a puppet beatles thing. I could never in a million years film him.

now he can perform on the street, at parties, conventions, and that's fine, but if I film him, I'm in for millions of dollars in fees.

of course, the film will never happen. then again, michael jackson may be a good position to take a cut in the fees these days.

Posted by: drbmbay | Jun 29, 2005 12:57:49 PM

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