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June 02, 2006


Agnes Varnum

But AJ, you've stopped short of discussing your opinion. As a filmmaker making films that deal with popular culture, this effects you.

Kirby and Byron Hurt and a few others are helping to pave the way for fair use to the gatekeepers so they are at an awkward moment, and the solution for these projects, as chronicled in that article, is really an interim solution. The 'elegant' fair use is where filmmakers and gatekeepers, as well as copyright holders, recognize when something is fair use and when it's not and quit trying to bully filmmakers into paying ridiculous fees (and there are host of other issues...).

How are you approaching the issue with your work? Or not?

AJ Schnack


You're right. I probably will write more about this subject. I'm excited by what is happening, mostly because I hope that there will be rules in place so that everyone, on all sides of the divide, will know what to expect. This comes, in part, from my journalism background. There is a rich history of law for journalists that provides a background for their daily operations. Less so, for documentary filmmakers - who often times are performing a journalistic role.

I think this is certainly the case for Kirby's film, and the declaration of fair use is important for him to make his investigation work.
I'm still wondering what to think about Wanderlust, however.

While I'm glad to see that IFC's tactic got most of the studios to lower the ridiculous fee structure, I wonder if the courts would agree that that style of documentary - a collection of classic film clips intercut with interviews - rises to the level of critique or, say, journalism, that might be necessary. I don't know the answer to this.

As for myself, I haven't had to employ fair use that much, although there have been times when I've argued with the production lawyers for some journalistic rules - for instance, the idea that if you are standing in a public place you can film anything that is visible to the naked eye. These kinds of issues - whether or not one has to get permits and releases, while not really "fair use" issues, are at least as important to how documentary filmmakers do their jobs.

I will try to write a longer piece in the days to come. Thanks Agnes.


AJ Schnack

I have since written a second post on this topic, specifically dealing with the lawsuit lodged against Michael Moore and what it may mean for filmmakers.

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