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Documentary and the Law

By Jack Lerner

Documentary filmmaking is in a special moment. Digital technology and Internet distribution have led to unprecedented new opportunities for filmmakers and a new role in popular culture. Meanwhile, as our media ecosystem becomes increasingly fragmented and traditional journalism outlets face ever more attrition, documentary has taken on a new role as a center of in-depth investigative journalism.

While these changes are surely good for our democracy, they don't always match up neatly with longstanding laws and policies around freedom of speech and the media. From copyright to telecom to the First Amendment, much is in flux. In this quarterly column, I will explore legal and policy issues that are important to documentary filmmaking. Let's start with a tour of some recent developments—and controversies—in the legal sphere. As you'll see, there is a lot going on, requiring our community to stay informed and work closely with friends across the country and in Washington who are also following these issues.


Net Neutrality and Telecom

The stakes are high in the battle over how the Internet will be governed. The main fight is over whether providers such as Comcast will be required to act as neutral carriers like the telephone system, or whether they can charge for access to their users, like cable—hence the term "net neutrality." For independent filmmakers, this is almost an existential threat: Without equal access, platforms would be at a serious disadvantage, and production itself would be much more expensive.

But there is good news! Last year, the FCC issued a strong rule preserving net neutrality after a decade of fighting, and in June it was upheld by one of the highest federal courts in the nation. We're safe for now—but we must always stay vigilant. (IDA filed comments with the FCC on this issue in 2010 and 2014.)


Copyright Reform

As technology evolves, so does copyright law. Both in Washington and in courts across the land, new developments that could affect documentary filmmakers are happening all the time.

Let's start with Washington, where the last few years have seen a surge of copyright reform activity. For example, in 2013, a Department of Commerce task force issued a 122-page "green paper" commenting on nearly every aspect of copyright law, and proposing more studies in a number of areas such as whether remix videos are fair use. That same year, US Representative Bob Goodlatte (R-VA), as chairman of the House Judiciary Committee, began what he called a "comprehensive review" of US copyright law, resulting in 20 hearings with 100 witnesses—so far. Meanwhile, the US Copyright Office has commenced nine policy studies at Congress' behest. That's a lot of activity. It's hard to keep track of, it's hard to tell what will actually turn into legislation and, worst of all, it's often quite difficult to tell whether a given reform will help or hurt documentary filmmakers without a deep dive into the details of the policy being proposed. The solution starts with staying informed and in touch.

Meanwhile, the law of fair use continues to evolve. Fair use allows one to use copyrighted works without permission or payment, if done for certain socially valuable purposes such as criticism and commentary. This is the "safety valve" that keeps copyright law from running roughshod over the First Amendment, and filmmakers depend on it perhaps more than any legal doctrine. Over the past 10 years, we have established a practice using the Statement of Best Practices in Fair Use and media liability insurance that enables us to exercise our fair use rights reliably, responsibly and safely. But our ability to do this is under constant threat, from challenges in the courts to the chilling effect of the Digital Millennium Copyright Act.

The DMCA makes it illegal to access material from encrypted media like DVDs or Blu-ray, even when it's for fair use, posing great problems for filmmakers as the digital ecosystem achieves higher and higher fidelity. In other words, even if it's legal to use the material, it's still illegal to access it. Fortunately, a large coalition of filmmakers and organizations led by IDA has come together to obtain exemptions to the DMCA that preserve our fair use rights—but we have to do that every three years, and it is a long, hard-fought slog each time that diverts attention and resources from other pressing issues. This spring, IDA filed comments in one of the Register's policy studies, proposing a few changes that could make this law work better. And in July, the civil liberties group Electronic Frontier Foundation sued to overturn the law, charging that the DMCA violates the First Amendment.

Other areas of copyright law continue to evolve as well. In 2014, a federal court of appeals ruled that actress Cindy Lee Garcia had a copyright in her five-second appearance in the anti-Muslim screed Innocence of Muslims. The ruling was terrifying for our community because it suggested that anyone who does something creative in a film could have a copyright interest—contrary to established law, which says the producer is the author of the film and holds the copyright. Fortunately, that ruling was overturned last year (in an opinion that referred to one of the two amicus briefs IDA filed in the case). Since then, however, similar new challenges have arisen, most notably a lawsuit over the 2014 film The Good Lie. In that dispute, 54 Sudanese refugees argue that their initial interviews with the filmmakers are copyrightable and they are therefore joint authors of the film. In May, a federal judge allowed the case to progress to the fact-finding stage.


The Right of Publicity

This is the right to control the commercial use of one's identity—often called "likeness rights." It has always been legal to film or interview someone in public; the right of publicity was originally an exception to that rule designed to protect people, particularly celebrities, from false endorsements. Over the years, however, the courts have steadily expanded the doctrine, and we have seen a flurry of litigation making ever more bold attempts to expand the doctrine. To make matters worse, it has grown exceedingly complex because it varies from state to state. This matters greatly in documentary filmmaking because we want to be able to discuss real people and events freely and without fear of liability; publicity rights that go too far would seriously undermine our ability to do that by giving celebrities total control over how their images are used.

Sports video games are the latest front in this struggle. The Supreme Court has long held that video games are protected speech just like other media, but there have been pitched battles over whether that includes the depiction of real individuals in video games. As virtual and augmented reality become more prevalent, however, the distinction between video games and traditional media has begun to erode; the fear is that our rights will erode with it. (In 2012, IDA filed an amicus brief in one of these cases, urging the court to adopt a clear standard that firmly protects free speech.)

Another controversy flared up last year, when soul legend Aretha Franklin, citing her publicity rights, sued the Telluride Film Festival over the documentary Amazing Grace, which features extensive footage from a 1972 concert. The judge in that case issued an injunction ordering the festival to pull the film, over objections that doing so was an illegal prior restraint. The case remains on hold while the parties work out a settlement.


The First Amendment and Journalists' Rights

The laws around journalism—think defamation, the First Amendment, access to the courts and government documents—have always been of interest to the documentary community, but never more than today. For example, many states have recently passed "ag gag" laws that make it illegal to film inside private facilities. The laws raise serious obstacles for filmmakers and whistleblowers across many industries. Debates also rage over government surveillance of documentary filmmakers such as Laura Poitras. And let's not forget that old standby: defamation cases brought by the subjects of documentary films including The Queen of Versailles (2014) and this year's Tickled. But recently it was revealed that Silicon Valley billionaire Peter Thiel has been secretly bankrolling a litigation campaign designed to put news site Gawker out of business. While defamation claims have long been used by powerful interests to silence speech they do not like, Thiel's secret vendetta brings a new dimension. Along similar lines, Joe Berlinger's heroic fight to keep his raw footage confidential both spurred documentary filmmakers to structure their productions to protect against intrusive subpoenas, and called for a federal shield law that would provide such protections. Although several bills have been introduced since 2007, none have passed.

In future columns, I will dive more deeply into some of these issues, and explore what the documentary filmmaking community can do to help protect our craft, freedom of speech and the ability to speak truth to power. Stay tuned—and be fearless.


Jack Lerner is Clinical Professor of Law at the UC Irvine School of Law and a member of IDA's Board of Directors. He also directs the UCI Intellectual Property, Arts, and Technology Clinic, which has represented IDA in numerous matters. The Clinic, along with co-counsel Donaldson + Callif LLP, recently won a "California Lawyer Attorney of the Year" Award for their work obtaining exemptions to the Digital Millennium Copyright Act on behalf of IDA and others.