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June 02, 2006


Agnes Varnum

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.

AJ Schnack

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.

Agnes Varnum

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.

AJ Schnack

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.

Jonthon Coulson

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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