More on Fair Use: The Michael Moore Lawsuit
My pal Agnes Varnum prodded me in the comments of my previous post on fair use to talk about how fair use issues affect my work in nonfiction filmmaking.
My response was that of even more interest to me than (but in the same category as) fair use is the question of rules. I mentioned that because I went to journalism school and even worked briefly as a television reporter, I knew that there was a whole backdrop of rules that applied to how I conducted myself, where I could put the camera, who I could shoot, etc.
For the most part, nonfiction filmmaking is still a bit of the wild west. Are we bound by the same rules as narrative filmmaking - getting releases, permits, etc.? Or are we covered by some of the same case law that guides journalists?
So, while I'm very interested and excited to follow what's happening with the IFC situation and wonder how it might make my job a lot easier, I'm also very curious about the recently announced lawsuit against Michael Moore.
The situation? Michael Moore either licensed or claimed fair use on an NBC News clip for his blockbuster doc Fahrenheit 9/11. In the clip, a returning Iraq War vet talks about injuries sustained. As noted in the London Guardian article (thanks to MCN for the link):
The soldier, Sergeant Peter Damon, says he feels like he
is being "crushed in a vice". Painkillers, he continues, "take
a lot of the edge off of it".
The scene follows a clip showing the Democratic
congressman Jim McDermott criticising the Bush
administration's conduct of the war in Iraq. "You know,
they say they're not leaving any veterans behind, but
they're leaving all kinds of veterans behind," the politician
says.
It bolsters the anti-war sentiments of the film, suggesting
that Sgt Damon and others were abandoned by America's
political leaders after sustaining horrific injuries in pursuit
of a conflict about which many developed doubts.
The problem for Peter Damon? He has no doubts about the Iraq War and he's a big supporter of George W. And because of the anguish he says he's suffered over being appropriated by Moore, he's suing the filmmaker for $75 million dollars. Specifically, Damon claims to have suffered "loss of reputation, emotional distress, embarrassment, and personal humiliation". Damon's wife is suing for another $10 million.
More from the article:
Neither NBC nor Moore obtained a release form from
Sgt Damon giving permission for them to use his image.
NBC is named in Sgt Damon's lawsuit, as are the
producers of Fahrenheit 9/11, Miramax and LionsGate
films and companies involved in the distribution of the
film. None of the companies would comment on the
lawsuit. Moore did not return messages requesting
comment.
According to (anti-Moore film "Fahrenhype 9/11 director
Alan) Peterson, Sgt Damon's experience is typical
of the subjects in Moore's films. "We went through Michael
Moore's film and looked at the people he interviewed and
asked them if they felt they had been fairly treated," he
said. "More often than not they didn't know they had been
interviewed for the film."
Peterson said others might well come forward with claims
against Moore. "It wouldn't surprise me if this rippled
through Michael Moore's other films," he said, "because
his modus operandi hasn't changed. Michael Moore and
Miramax made a ton of money off these people. It will be
interesting to see how the courts view that.
"I hope it sends a message to film-makers that we have
to be careful. The idea that there is objectivity in film-
making is ridiculous.
While the lawsuit is clearly part of a larger effort to get that leftie-commie Michael Moore, it is going to be an interesting and important test case that will either chill the work of nonfiction filmmakers (if it succeeds) or set in stone a rule to guide us in the future - we can use clips from news programs (and the people interviewed in them) to make our own case - even if the case we are making is the opposite of what the person being interviewed believes.
Will it make a difference whether Michael Moore licensed the clip from NBC News or if he claimed fair use on the clip?
Will it make a difference whether he knew that the NBC News clip specified that Damon supported the war - what if the clip was brought in by a producer or an editor and Moore had never seen the initial, complete NBC report?
And what of director Alan Peterson, who claims that "we (filmmakers) have to be careful"? Careful of what, exactly? Careful to actually be objective? Careful to have a release on every single person in our film? Careful to make sure that if we get a release we are presenting the person's views accurately? Where does "be(ing) careful" start and stop"?
It seems unlikely that such a lawsuit would succeed, but if it did, it would be drawing a line between journalists (on whom you must prove malice) and nonfiction filmmakers, even when the footage you're using comes from the news.
Thanks for expanding on your thoughts, and you bring up several good points. You mentioned in the comment to your previous post that your journalistic training gave you clear guidelines as to what was permissable and what wasn't. That is a huge problem in doc filmmaking - you call it the wild west, my colleagues at American Univeresity have termed the result "clearance culture," where in lieu of established, reliable industry practice, the copyright owners are persistantly determining what will appear in a film and what won't.
You are also bringing into the mix other issues besides copyright, and certainly in this case with Moore, copyright is intertwined with libel - but they are separate and folks need to aware of that separation.
If you take a film that relies heavily on fair use, such as Byron Hurt's Beyond Beats and Rhymes, he is critiquing hip-hop culture and the messages it imprints on young people. If Byron had to get Nelly's permission to use the video of him swiping a credit card down a woman's ass crack for the film, would Nelly have granted him permission? If so, at what cost?
Copyrights are a bundle of rights that give the holder a little monopoly over their material, but our system abhors a monopoly. Fair use is the safety valve of copyright for freedom of speech.
This turned out to be a long post, but I guess what I'm getting at is that doc makers need to understand the laws that govern what they do, and smart folks like you could really help establish the guidelines that you are seeking, by utilizing your rights and not waiting for some lawyer or copyright holder to say it's ok.
As put together your Nirvana doc, I want you to be able to craft a film that represents your point of view and is not censored by what you were able to clear and what you weren't, and that once it comes out, it won't have a doomed shelf life because you could only afford certain rights and not others.
Posted by: Agnes Varnum | June 02, 2006 at 01:50 PM
You're right, of course, of the fact that these are two separate issues - Michael Moore is essentially being sued for defamation, not copyright infringement. But NBC is also named in the lawsuit. If Michael Moore used the clip by fair use, how can NBC be held responsible. And if he licensed the clip from NBC, who would be to blame - NBC for not setting a stipulation that the clips be used in context? or Michael Moore for taking the clip and using it in a different method than it was initially intended.
Your point about my Kurt Cobain film is well taken, but it brings up other questions that I'm not sure I have the answer to. If I were making a film that was specifically about Kurt's artistry, could I use a small piece from "In Bloom" without clearing it with his estate or with Courtney? Couldn't I make the argument that I'm critiquing Kurt as an artist, therefore I need to use his music to make my point?
What if I had made Punk: Attitude and I wanted to end with a Nirvana track because that's where my story ended. Could I just use it and declare fair use? (For the record, Punk: Attitude does end with Nirvana but without a Nirvana track.) And since IFC helped produce Punk: Attitude, would they use the same tactic on music licensing that they have on film clips?
I think one thing I'd like to see the Center for Social Media do is host seminars with production lawyers and copyright holders to let them know what the rules are. You'd be amazed (or maybe you wouldn't) how many folks know nothing of the work done on fair use over the past year.
Posted by: AJ Schnack | June 02, 2006 at 05:46 PM
I'm sorry, if people know nothing of this work then I'm not doing a good enough job getting the word out.
We've been meeting with as many filmmakers as will listen, we've published articles, made video examples and other teaching materials for law teachers as well as film teachers and have involved legal clinics at several law schools, in addition to working with commercial entites like broadcasters and insurers, trying to address their concerns. Peter Jaszi will be at the upcoming Copyright Society of America with Gordon Quinn (of Kartemquin Films) and they are showing the group Byron's film.
I thought we'd done a lot for our little rag-tag team, but since the filmmakers aren't taking charge en masse, it has been difficult getting festival programmers to host us - FIND just informed me today that they've scrapped a planned panel on fair use at the LA Film Fest (I was looking forward to coming to LA again!). Even IFP New York, which is co-author of the document, won't host an event to share the Statement with their members. Not sexy enough compared to Gotham Awards and the Market - and consider the case of AIVF, which was also a co-author.
The short version is I'm open to any suggestions you have on how to reach more people, but at the end of the day, if momentum comes from you, it will be more successful. The Center can't establish industry practice, we can only advise stakeholders, educate.
To your project, your first questions are covered by the Statement - commentary and illustrating a point. As for the question about music, music for copyright purposes is the same as film clips. A fair use claim depends on what you are using it for and that you aren't using more than you need to make a point. If you need it, I have a great list of lawyers who are advising on fair use.
Posted by: Agnes Varnum | June 02, 2006 at 07:11 PM
I don't think it's your fault that people don't know - I was actually stunned to find people who should know about it (prod lawyers, etc.) who didn't. Hopefully the light shone on it by IFC and others will help make people realize that there is something vital going on. And yes, it would be nice if every film festival had a seminar on it, as opposed to yet another panel on "how to make and sell your film".
I will continue to do what I can in the small way I can here in my little corner of the indie film blogosphere.
Posted by: AJ Schnack | June 02, 2006 at 08:01 PM
My guess? Moore will be dragged into court and pressured for being a leftie-commie, but a judge will see clearly that he met his legal obligations and will either through the case out, or just remove Moore from the list of defendants.
The money-grubbing wife may hurt the case, as it makes Peterson's motives patently clear. As does a request for $75 million in defamation of character, especially given that I am still unsure as to which scene Peterson even appeared in. At the very best, he might hope to get a proportion of the proceeds equal to the fraction of time he appeared in the movie - and even that would be a handout enabled by an overly litigious society.
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