COPYRIGHT AND FAIR USE
These are my notes from Professor Susan Nevelow Mart’s presentation on Fair Use and copyright, and how they impact our work as filmmakers. (My comments are in parentheses, thus.) As she does, I must point out that this is a discussion about frameworks for thinking about fair use, not professional legal advice!
Copyright law is different from country to country. In the U.S. it is enshrined in the Constitution, which allows Congress the right to grant copyright for a limited time. The Constitution states that Congress shall have the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
From this chart, you can see the evolution of copyright terms. In 1790, the exclusive copyright period granted to authors was fourteen years. Today, after multiple term extensions, copyright for a “corporate” creation can last up to 120 years. (In the film world, authors don’t usually retain their copyrights but assign them to big media corporations which are able to influence Congress to extend the time copyrights last.)
Fair Use is an affirmative right, which we all have. It allows us to make use of copyrighted material without infringing. Fair Use depends on four things:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
A “fleeting and incidental” use is usually considered fair. However, Fair Use is an affirmative right in that you must assert it in order to benefit from it, and this brings with it business risks. Lawyers for big media companies have some clout. For example, John Else made a documentary titled SING FASTER: THE STAGEHANDS’ RING CYCLE (USA, 1999), a behind-the-scenes look at a seventeen-hour cycle of four operas. One scene from his documentary included a 4.5 second clip of some stagehands watching TV. On screen was an episode of “The Simpsons”. Matt Groening, the creator of “The Simpsons,” had no problem with the documentary’s use of the clip. But Groening does not own “The Simpsons” — it is the property of a massive media conglomerate, News International, and its Fox TV subsidiary. Fox wanted ten thousand dollars as a license fee for that brief clip; fearing a lawsuit, the filmmaker cut it out.
Documentary filmmakers increasingly found themselves in situations where they altered reality to remove potentially copyrighted material from their films. To distribute films, filmmakers need liability insurance — so as to reassure festivals and distribution companies that all copyrights have been cleared, that no one is defamed, and that they will not be sued for showing the film. So a group of American filmmakers came up with a Documentary Filmmakers’ Statement of Best Practices in Fair Use. As a result, insurance companies began to look more favorably on a filmmaker’s reasonable assertion of Fair Use.
The courts look more favorably on Fair Use which is a parody or transformative (re-use of the material in a new way). The American artist Jeff Koons works with appropriations of other people’s material. Twice the courts have decided against Koons; but the court has also decided in his favour – based on the amount of material he appropriated, and how transformative his use was.
In 1994, the US Supreme Court decided that a commercial parody can count as Fair Use. The case was Campbell v. Acuff-Rose Music, Inc, and involved the band 2 Live Crew’s version of a Roy Orbison ballad, “Oh, Pretty Woman.” Even though 2 Live Crew’s version was a commercial product extremely similar to Orbison’s, both lyrically and instrumentally, the Court decided it was a parody and therefore covered by Fair Use. Similarly, in 1998 the photographer Annie Liebowitz lost when she sued Paramount Pictures for emulating a photograph she took of the actor Demi Moore for Vanity Fair: the studio had placed the face of the actor Lesley Nielsen over a model posed like Moore, and the court stated that this was transformative, and parody.
The case of Cariou v. Prince (2013) involved a commercial artist, Richard Prince, appropriating numerous photographs from a book by Patrick Cariou, scanning and painting on canvas, and adding additional elements. Though Cariou was able to demonstrate that the market for his work had been impacted as a result of Prince’s actions, and though the artist made no claim that parody was involved, the court said that most of Prince’s appropriations – made for commercial gain – were probably transformative under the guidelines the court set out, and sent the case back to the trial court to make a painting by painting evaluation on Fair Use.
Shepard Fairey, the designer of the Barack Obama “Hope” poster, used an original photograph by AP freelance photographer Mannie Garcia. When Garcia requested financial compensation, Fairey sued for a judgment that his work was Fair Use. The parties settled out of court in 2011, with details of the settlement remaining confidential. Fairey was sentenced to two years of probation, 300 hours of community service and a $25,000 fine for criminal contempt. He had destroyed documents and manufactured evidence. (Fairey was not punished for a copyright infringement, but for his actions in the lawsuit.)
In general, the above cases show that courts can be receptive to artists’ claims of Fair Use, based on the nature of the parody or the transformative nature of the work, even when the artist in question has made money from the transformation. This, in theory, is good news for filmmakers.
Two examples of films and videos successfully made and shown under Fair Use principles are BUFFY VS EDWARD: TWILIGHT REMIX (USA, 2009), and ESCAPE FROM TOMORROW (USA, 2013).
BUFFY VS EDWARD is a mash-up of the TV series and the film, made by Jonathan McIntosh. He writes, “The work is an example of fair use transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.” It was subject to repeated take-down notices from Lionsgate, a company which had acquired the rights to one of the TWILIGHT films. Yet Lionsgate did not initiate any other legal action, nor send the author a cease-and-desist letter. After he blogged about it, YouTube informed him that “the content has been reinstated.”
ESCAPE FROM TOMORROW is a low-budget feature, shot without permission at Walt Disney World. The film has played at festivals and in cinemas, and is being sold on DVD and blu-ray. The Disney corporation is famously litigious, yet it has not sued the filmmaker nor issued takedown notices against the trailer. The film’s website contains a counter titled Number of Hours Since Release That We Haven’t Been Sued (currently 71 weeks, 6 days, etc.)
BUFFY and ESCAPE both suggest that following Fair Use guidelines can be of help to filmmakers, as does the case of Arrow Productions v. The Weinstein Company, where the judge found for the makers of a bio-pic of DEEP THROAT star Linda Lovelace, and against the owners of the copyright and trademark of the original film. In 2006, the Colbert Green Screen Challenge invited Comedy Central’s viewers to create mash-ups and submit them for broadcast. Many of the “finalists” contained copyright material, yet no lawsuits seem to have been filed.
Public Domain is an area in which all content is free of copyright. Any work made prior to 1923 is in the Public Domain. Thereafter, the law changed frequently, though many works made after that date – including films and their trailers – also entered the PD. Anyone can copy, sell, and transform Public Domaine works. A list of the rules regarding the Public Domain, as it has changed over the years is here.
Trademarks are a separate area of the law which concerns the filmmaker primarily if a logo appears in their film. Logos like the Golden Arches or the Swoosh are trademarks, and one can be sued for casting products in a bad light, or using the logo in a way that might create confusion in a viewer’s mind that the film is endorsing the product. Although “incidental use” seems like it would be a Fair Use, different courts have differing views of what constitutes incident use, with the 9th circuit of appeal (includes California) having a more lenient view. The 2nd Circuit (includes New York) is not very tolerant about “incidental” uses of trademark. (This benefits all filmmakers: you may not have to worry if the logo of Conoco or Starbucks appears in the background of your scene as long as the appearance is “fleeting and incidental.”) But, any use should be based on a balancing of the factors, and an awareness of the business risks involved in claiming Fair Use.
Copyleft includes a number of Creative Commons Licenses which artists and creators can choose instead of the more restrictive copyright. Creative Commons Licenses permit a variety of possible uses and re-uses of material. As one example, a musician might post a new song with a Creative Commons License that allows reuse for free, so long as there is attribution and the use is not commercial. A filmmaker can use that music for a film, before any commercial use, and then if the film is picked up, can pay the musician for the rights.
Further reading The book Fair Use, Free Use and Use by Permission: How to Handle Copyrights in All Media contains a checklist which you can use to address Fair Use and copyright issues your film may have. Nolo Press is a great resource which tells you how to create many legal documents on your own, and when you really do need a lawyer.