February 9, 2012

Letters to the Editor: Give Fair Use a Fair Shake

While Documentary is to be lauded for giving attention to the fair use revolution, Cynthia Close's review of Reclaiming Fair Use by Pat Aufderheide and Peter Jaszi that appeared in the Winter 2012 issue does a disservice to your readers by perpetrating and perpetuating several misconceptions about fair use.  

The problems start with your headline: "Creators vs. Consumers: Reclaiming the Conversation about Copyright." The revitalized fair use doctrine does not pit "Creators" against "Consumers." I can assure you that the documentarians who developed the first Statement of Best Practices in Fair Use (I was one of them) were keenly aware of our dual position as both creators and users of copyrighted material. In fact, all active participants in our culture wear both hats, influenced by the culture we take in and influencing those who take in the culture we make. Fair use is about ensuring that copyright law and practice embody that built-in duality, rather than letting a few powerful interests monopolize the title of "creator" and dictate terms to the rest of us.  

The review includes a more specific fallacy that will unnecessarily discourage Documentary readers from exercising their fair use rights. You don't "need an attorney to scrutinize" each usage. Fair use is free speech, and there are limits, just as with other kinds of free speech. But in everyday life, you don't need a lawyer to advise on whether you're shouting "fire" in a crowded theater, any more than you need a weatherman to tell which way the wind blows. Read and understand the Statement of Best Practices, and you'll be as well prepared as the mainstream journalists who employ fair use multiple times each day without ever consulting an attorney.   

Large media organizations rely on fair use constantly-think of Viacom and The Colbert Report--while trying to bully the rest of us into thinking we don't have such rights. It's the one percent against the 99 percent in intellectual property, which is why I've suggested we re-name the fair use movement "Occupy Copyright." As Close acknowledges in the review, she, as a distributor, may feel threatened by a revitalized fair use doctrine. But balance in copyright will ultimately benefit Close's company as well as the filmmakers whose work it represents. Reasonable limits on copyright--limits that apply to everyone--encourage independents to create. And that's good for everyone.  

I hope Documentary will do right by the creative community it represents, and spread the word about how empowering and productive the fair use revolution really is. 

 

David Van Taylor
Lumiere Productions

 

I was glad to see that credit was rightly given to Pat Aufderheide and Peter Jaszi for their important work in the field of fair use in the review of their new book Reclaiming Fair Use: How to Put Balance Back in Copyright. However, the review overlooks the critical work that documentary filmmakers like myself and dozens of others put into creating the Best Practices for Fair Use documents that Close cites. Filmmakers, along with organizations such as IDA, played an essential role in providing experiential information about copyright use, which formed the lifeblood of the book's research. My experience of that transformative work was not so much about marking a division between creators and consumers--most documentary filmmakers are both--but rather learning that there was a world of misinformation in which we as filmmakers had operated until we came together to reinvigorate fair use practices.

One of the most exciting parts of this change is that we filmmakers have rediscovered our capacity to make films that couldn't have existed before we properly understood the nuances of fair use. Moreover, we can make these determinations based on current best practices of our peers. And finally, it's important to note that in fact, attorneys are only occasionally helpful or necessary in our efforts to justify a fair use claim. The important first step is that we filmmakers educate ourselves in the values and purposes of fair use.

 

Katy Chevigny
Co-Founder and Senior Director
Arts Engine

 

I was surprised to see that the review of Reclaiming Fair Use was assigned to a self-described "gatekeeper" who confesses to being ambivalent about "giving fair use a platform."  This leads to some confusion. Documentary filmmakers, including the members of IDA, which has vigorously endorsed fair use education, are not at all ambivalent about this important free speech policy.

I'm the founder of Kartemquin Films, a 45-year-old documentary production center. We own a lot of copyrighted material; we also use copyrighted material in the work we produce.  The subtitle of Aufderheide and Jaszi's book is How to Put Balance Back in Copyright, and this is how the documentary community, the creators of the first of the codes of best practices, view the issue--as one of balance. We are not "self-styled pirates"; we are not anything-goes-and-the owners-be-damned. We are owners and users of cultural material, and we needed and wanted balance. 

Let me mention some history and a bit of disclosure. Kartemquin and many in the independent documentary community, had not "completely ignored or forgotten" fair use. If you look at our older films broadcast on PBS [The Last Pullman Car,1983; Golub,1988; etc.], you can see many examples of fair use. We had not read the law, but we had a sense that as makers we had some rights, some ability to use copyrighted material within limits that we were admittedly vague about. Then things changed, as Aufderheide and Jaszi describe, and the clearance culture took complete control. By the time of Hoop Dreams (1994), to get E&O and to be broadcast, we had to clear elevator music and news clips, and when the family sings "Happy Birthday" to their son, we had to license that song. 

Aufderheide and Jaszi researched the problem, and came to the documentary field with a vision: that we could reclaim our fair use rights if we stood up as a field and defined and asserted them. I was one of their first supporters and became a leader in the movement their work inspired. They held meetings across the country; we hosted two at Kartemquin with over 40 filmmakers and organizations, and thrashed out an interpretation of the fair use section of the copyright law that found balance between our rights as both users and makers of culture. This balanced view was published in the first of the codes of best practices, The Documentary Filmmaker's Statement of Best Practices in Fair Use. The IDA, the parent of this magazine, was one of the Authorizing Organizations along with other media arts organizations that helped to create and publicize it. With the code in hand and support from Aufderheide, Jaszi and many others such as Michael Donaldson, a leading West Coast entertainment lawyer, and legal clinics such as the Stanford Fair Use Project, we set out to educate the rest of the documentary field and the "gatekeepers"-the broadcasters, distributors, insurers and the lawyers and film professors who had been knowingly, or unknowingly, helping to enforce the clearance culture. We found some of these so-called "gatekeepers" to be sympathetic, and they became allies. And now we are winning. 

Kartemquin's use of Fair Use has been growing in all of our recent films broadcast nationally, including Refrigerator Mothers (2002), In The Family (2008) and The Interrupters and A Good Man (2011). We now have a strong sense of what our rights are and how to assert them. Yes, we do get lawyers to review our claims and we get letters from them, to satisfy the need of the E & O insurer. But we tell the lawyer how we want to assert our fair use rights. 

We have reclaimed our rights; we have put balance back into copyright. Pat Aufderheide and Peter Jaszi are our heroes; they did the research and analysis, and were the catalyst for our movement. But we--documentary filmmakers, rights holders and users of our fair use rights--were the movement. This book, among other things, is the history of that struggle.

 

Gordon Quinn
Founder and Artistic Director
Kartemquin Films

 

Cynthia Close responds:

As I write this reply to the well-stated concerns expressed by David Van Taylor, Katy Chevigny and Gordon Quinn regarding my recent review of the Pat Aufderheide and Peter Jaszi book, Reclaiming Fair Use, Google has placed a black "censored" band over its logo and Wikipedia has taken itself "down" for a day of protest to the recently proposed copyright legislation (Protect IP Act) backed, by, of all people, my most liberal senator from Vermont, Patrick Leahy.

I offer this long-winded response as part of my defense of the stance I took in my review--that copyright remains a very contested and convoluted area for both creators and consumers, making for such strange bedfellows as the liberal Representative Howard Berman (D-California) and the conservative Senator Marco Rubio (R-Florida). As intellectual property continues to be a major driver of economic growth--particularly in democratic nations and those moving toward democracy--I don't see arguments regarding control of copyright going away anytime soon.

Reference was made to my self-identified position of "gatekeeper," but being a "gatekeeper" was a responsibility clearly expected of me by those filmmakers-those creators- who entrusted their finished works to me as their representative in the marketplace. I did not take this role lightly, and indeed it required a vigilance in the marketplace to protect my filmmakers' works from being exploited, not only by such blatant file-sharing sites like BitTorrent or MegaUpload, but also from more perhaps innocent, yet still exploitative uses of their work by fellow filmmakers. In particular, our company handles some very sensitive subject matter, many films made about or in collaboration with tribal peoples in cultures far less sophisticated in terms of technology and image appropriation than ours. These filmmakers in question had often negotiated agreements with their subjects based on trust and very careful control of the context within which their footage would be used. Knowing this, I could never, in good conscience, say I support a doctrine that would allow, suggest or promote one filmmaker to use another filmmaker's work "without even asking permission."

Not all filmmakers are as high-minded or respected as Kartemquin's Quinn. While I know "You don't ‘need an attorney to scrutinize' each usage" (my editor felt the need to insert this piece of advice in my review), those who wholeheartedly embrace the tenants of the Fair Use Doctrine as envisioned by Aufderheide and Jaszi, and use it as an excuse for what I would consider at the very least an unethical, if not illegal interpretation of copyright, need not be encouraged.

 

Cynthia Close
President
Documentary Educational Resources

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