Fair Use Follies
By Frances Presema, Illustrations by Keith Aoki
Fair Use Follies: Duke Law Professors Create Comic Book Guide for Filmmakers
Curvaceous and well-muscled in classic superhero style, Akiko is the central character in what is certainly the most unusual legal publication to come out of Duke — a comic book about intellectual property.
Aiming to make a documentary about a day in the life of New York City, Akiko finds herself confused as to which aspects of city life, from theatre marquees to museum pieces to songs played by subway buskers, might be subject to copyright and which she can freely use in her film under the doctrine of fair use.
She is guided through this legal minefield by two intellectual property experts, unnamed yet unmistakable to anyone who has met their real-life counterparts: William Neal Reynolds Professor of Law James Boyle and Jennifer Jenkins, director of the Center for the Study of the Public Domain, which published the book. The two co-authored Bound by Law? Tales from the Public Domain along with the book’s cartoonist, Keith Aoki, Philip H. Knight professor of law at the University of Oregon Law School.
We wanted to reach out to people who may be producing in non-conventional means, including kids with digital cameras who are out there making movies for pennies, and explain to them what the rules actually are
Entertaining and accessible, the comic book treatment was perfectly suited to the trio’s serious goals of educating filmmakers (who don’t typically read law journal articles or have lawyers on retainer) about the interface between copyright law and documentary film — separating fair use fact from myth, reviewing copyright terms and benefits, explaining the importance of a rich public domain to creation, and posing provocative questions about the effect of a rampant permissions culture on creative endeavors.
“There is an increasing unwillingness of filmmakers to get copyrighted material into their viewfinders in the first place — selfcensorship based on a tremendous amount of ignorance about what the law actually is,” says Boyle. “We wanted to reach out to people who may be producing in nonconventional means, including kids with digital cameras who are out there making movies for pennies, and explain to them what the rules actually are. As we thought about the medium in which to go explore this, it seemed obvious that a comic book is a genre that spans both high- and lowbrow, and has the ability to portray complex things and, above all, can capture the visual craziness that goes on in some of these controversies over fair use.”
In the book, Akiko’s legal guides help her identify the broad classes of cultural fragments that documentary filmmakers commonly encounter — the background sounds and images, such as ring tones and television shows, that are accidentally captured in the course of filming, and the music, movies, and other images that are essential to a historical or cultural narrative. She hears how the makers of “Mad Hot Ballroom,” a documentary about New York City youngsters in a dance competition, accidentally captured a cell-phone ringing to the tune of the “Rocky” theme song, and were asked, by rights-holder EMI, to pay $10,000 to clear its use; they eventually settled for $2,500, although the Boyle character points out that there was a strong argument to be made that the fragment constituted fair use. In a separate instance, the filmmakers deleted a subject’s spontaneous use of a song lyric, rather than pay the $5,000 demanded for clearance.
“What we’re seeing is a sort of ‘perfect storm’ — a conjunction of two trends,” says Boyle. “On the one hand you have an explosion of technical capability to capture the world around you to make documentary films. On the other, we’ve had this surge of the ‘permissions culture,’ where people are asking for permissions for fragments that before no one even thought of asking for permission for, or licensing, or demanding payment for. And the two things are on a collision course — we’ve got more and more people who know less and less about the law, with more and more capability, meeting a culture that is demanding more and more payments, clearances, or legal hoops to jump through.”
As Akiko finds out, perpetuating the problem are errors and omissions insurers who, being naturally risk averse, often don’t recognize fair use and demand that filmmakers clear everything before their films can be distributed. Excessive clearance practices can actually erode the legal boundaries of fair use, says Jenkins. “One of the factors that courts consider in determining fair use is market harm, and if people start paying licensing fees for every minor snippet in the background rather than asserting fair use, then they can actually create a licensing market for those fragments. Hence the phrase ‘fair use: use it or lose it.’”
Having had it's genesis at Durham’s Full Frame documentary film festival two years ago when a panel of filmmakers shared their horror stories about copyright and clearance, the authors launched Bound by Law? at a Full Frame reception in April. Listening to Boyle discuss the disappearance from distribution of the noted civil rights documentary “Eyes on the Prize” when renewal of that film’s rights to music, footage and other materials proved prohibitive for its producers, Linda Atkinson nods with understanding. “Carmen and Geoffrey,” her film about the life and work of legendary black dancers and artists Carmen de Lavellade and Geoffrey Holder, can’t find distribution because she and partner Nick Doob can’t afford to pay the $90,000 cost of clearing the rights to the dance music in their $35,000 documentary.
“It’s stopped us dead in our tracks,” says Atkinson, adding that the film’s cultural significance has been widely recognized, as much as a record of the importance of dance to the civil rights movement as for its tribute to the artistry of Holder and de Lavellade. “To see this film that covers [the issue] from the late-40s until now, and all at once to have it stopped — you feel sort of defeated, like you’ve done something good and it’s going to die on the vine.”
Atkinson’s lawyer, Karen Shatzkin, who specializes in documentary film, says she encounters this problem all the time; in fact, a number of cases she has handled for such clients as D.A. Pennebaker and Chris Hegedus, makers of “The War Room” and other acclaimed documentaries, are discussed by the comic-book characters. Fair use assessments are best made proactively, before and during the film-making process, but filmmakers first must have some idea that they may encounter problems with copyrighted material in their work. Bound by Law? is “terrific” at doing just that, says Shatzkin. “It doesn’t talk down to people, it covers the terrain, and it gives filmmakers a grounding on the issue. What it does most of all is give the message that I am always trying to give, which is the law gives you far more rights than you realize.”
That is a central point of Bound by Law?, says Boyle. “It’s not so much in this case that the law is out of balance as it is that there is sort of a private culture that everyone is just used to paying for everything and demanding payment for everything. Yet we were very firm in the book to say it’s not just a matter that ‘anything goes.’” Indeed, the authors defend the copyright system as much as they criticize it; Akiko learns how copyright laws give her rights she can use to control how her work is used and get paid for it, but how a rich public domain is also essential to ensure the availability of raw materials for future creation.
In his afterword to Bound by Law?, Boyle further stresses the value of copyright to artists and creators, but also the unfortunate fact that just as the digital revolution has democratized filmmaking and other creative forms, the clearance culture and lengthening of copyright terms has put some cultural raw materials out of reach.
“This is supposed to be the golden age of documentary film, and in particular we’re supposed to see this entire new generation of digital filmmakers, armed with cheap cameras, making movies like ‘Tarnation’, a digital film which cost just $218 to make and went to the 2004 Cannes Film Festival but ended up costing over $400,000, most of which went to clearing rights.” He cautions that as young filmmakers see copyright as “a purely negative thing” they stand to lose respect for it, making them more likely to abuse it. One of the final concepts and images in the book is of a “sustainable” cultural landscape, where a balance exists “between what is owned and wha is free for everyone to use,” exactly the metaphor of cultural environmentalism that he introduced to a scholarly audience in his acclaimed 1996 book, Shamans, Software, and Spleens: Law and the Construction of the Information Society, and a series of subsequent law review articles.
“If more artists understand the issues that are affecting them every day, the dialogue can be more balanced,” says Jenkins. “It can include a larger part of the populace — not just groups that have the ear of Congress. And this can lead to a more rational and fair copyright system.”
Firmly believing that the main goal of the copyright system is to feed the public domain, Boyle, Jenkins, and Aoki have posted their comic book for free online to be read and downloaded, and to be shared
If more artists understand the issues that are affecting them every day, the dialogue can be more balanced,
Jennifer Jenkins '97
and used for derivative works under a limited Creative Commons license. They have reached an impressively large audience, helped by enthusiastic reviews and widespread media and blog coverage. The Center for the Study of the Public Domain’s Web site has received more than 112,000 visits and 2.8 million page views since the comic book was released in March, Jenkins reports. “At least 70,000 people have read the book online or downloaded it from our site alone,” she said, adding that it has also been downloaded from numerous other Web sites. Having been funded in part by grants from the Rockefeller, MacArthur, and Ford Foundations, the Center was able to distribute it free of charge to more than 2,500 filmmakers and documentary enthusiasts at Full Frame, and with a price tag of just $5.95 on Amazon.com and $4 for bulk orders of 25 or more, it is being snapped up by educational institutions and interested readers.
Fueled by the success of Bound by Law? the trio has another comic in the works, this one on music and copyright. “Music is an incredibly rich topic,” says Jenkins, who points out that music is and has always been a highly derivative art form. “If some of the restrictive rules that we apply today to sampling were applied to jazz when it was evolving, or to blues, folk, or rock and roll, then all of that music might not exist as we know it.” Stay tuned for more “tales from the public domain.”