All these wonderful things

EXPELLED Fights the Good Fight, Wins Major Victory for Fair Use Over Yoko Ono

In a major victory for proponents of Fair Use, the makers of the conservative-leaning Intelligent Design documentary, EXPELLED: NO INTELLIGENCE REQUIRED, prevailed over Yoko Ono in US Federal Court on Monday.  At issue: whether the filmmakers could use John Lennon's "Imagine" in a scene for the film without permission.

In his decision, judge Sidney Stein ruled that the filmmakers' 15-second use of the song was legal under the fair use doctrine because the use is actually commentary on the song itself.  From the WSJ's Law Blog, who have been following the case closely:

"In the course of ridiculing what they see as an academic world dominated by secular views, the filmmakers use a 15 second clip of John Lennon’s song “Imagine” (”Nothing to kill or die for/And no religion too”). The purpose of using the clip, according to Premise’s lawyer, Stanford’s Anthony Falzone, is to criticize the song’s “overtly anti-religious message” as “dangerously naive.”

In batting down Ono’s PI motion, Judge Stein...said the plaintiffs failed to show “a clear likelihood of success on the merits” ... — because, “on the basis of the current record, defendants are likely to prevail on their affirmative defense of fair use.”

While conceding that EXPELLED is a commercial film, and that the copyrighted work, Lennon’s “Imagine,” is the kind of work that lies at the “core” of copyright protection, Judge Stein appeared to give credence to the defendants’ theory that the sequence of the movie that includes the 15 seconds of “Imagine” amounts to a “layered criticism and commentary of the song.” In other words, the movie-makers adequately “transformed” the work."

In reaching his verdict, Stein cited the landmark copyright case Blanch v. Koons, wherein the artist Jeff Koons used a portion of a photograph by Andrea Blanche for a new painting.  The judge in that case ruled that Koons' painting was indeed a "transformative work".

The WSJ Law Blog notes that a second case has been filed in state court by EMI, which holds the master rights to Lennon's recording.  EMI claims that they have only licensed "Imagine" for use in a single film, 1984's THE KILLING FIELDS (although it's been bastardized by David Archuletta all season on American Idol) and that the use of the song in EXPELLED harms the company's ability to license the title.

The state court involving the original master recording may be more of a challenge for the filmmakers, as the WSJ Law Blog noted in an earlier article:

"Judge Lowe asked Falzone why it was necessary to use Lennon’s actual performance of the song, rather than, say, having Stein say the lyrics himself or flashing the lyrics on the screen. To this, Falzone gave what we thought was a compelling and novel reply. Lennon’s performance, said Falzone, triggers a specific emotional response in the viewer’s mind — i.e. “Maybe Lennon’s right; maybe the world would be better off without religion” — and it’s that response that the film, and its use of “Imagine,” seeks to criticize."

Chuck Tyron & Pat Aufderheide Weigh In on the New Nonfiction Awards

Earlier this week over at the Chutry Experiment, Chuck Tyron posted a fascinating review of Pat Aufderheide's book Documentary Film: A Very Short Introduction. 

He followed this Wednesday with a follow-up that begins with Aufderheide's list of must-see docs at this year's Sundance Film Festival and segued into a discussion of our newly announced nonfiction awards:

"Like a number of other bloggers, I think there is quite a bit to debate here. Is this shortlist significantly different than the Academy’s?  In other words, aren’t omissions inevitable when trying to encapsulate a genre as diverse as documentary?  What gets lost by possibly emphasizing “craft” over “message” (and I realize these categories are not mutually exclusive)?  I do think these are important questions, though many of them can be answered as the awards evolve.  But in general, I appreciate the attempt to recognize that documentary entails a craft of “representing reality” and not merely recording it."

In the comments, Aufderheide (who I have a great deal of respect and admiration for in no small part for her pioneering work on the issue of Fair Use) talks about the necessity of a re-focusing on craft:

"I think it’s really important to establish awards that highlight the craft of documentary. Not only do documentary awards often reflect the perceived importance or impact of the subject, they often also reflect a tendency toward the sentimental, especially evident when the subject is disability, the very poor, animals…The more we can openly discuss craft, the more we can discuss the techniques that create sentimental engagement, activism, high-quality discussion and other responses that show the film made a difference to people."

Weinsteins Pick Up "Chicks" (and Other Doc News & Reflections)

Less than 2 1/2 weeks before the kickoff of this years Toronto Film Fest, the Weinstein Co. announced that they have picked up worldwide rights to "Dixie Chicks: Shut Up and Sing", the new doc from Barbara Kopple and Cecilia Peck, according to the Hollywood Reporter.  Eugene Hernandez leaked word of a pending deal almost two weeks ago.

Apparently the plan is to release the film this fall, just before the US elections.  Is this a good idea?

Meanwhile, amidst all the ongoing doc action in Los Angeles and New York, there seems to be an endless flow of nonfiction-related news.

Here on the blog, filmmaker Linda Ellman responded to my post about her new film On Native Soil: The Documentary of the 9/11 Commission Report, which premieres tonight on Court TV.  I had wondered how her film had qualified for last year's Oscar shortlist when I couldn't find any record of her having a qualifying run.  She sent in a link noting her screenings at various Laemmle theatres in Los Angeles.  But she confirmed that the film has not played any festivals, something that I am still curious about as it seems to be such a high-profile film.

(I should clarify here that my general curiousity on this topic ties in to a general question about the Academy's qualifying procedures, an often byzantine set of rules and regulations.  I was speaking with the producer of an acclaimed new nonfiction film (one likely to be shortlisted) and they told me that they felt like they deserved an award just for figuring out how to navigate the process.  On the other hand, if the Academy truly wants to honor docs that have a true theatrical run, it would seem that a series of daily morning screenings at the art house might not (or perhaps should not) cut it any longer.  In any case, I'm going to dive into this topic at length at another time.)

Meanwhile, Agnes Varnum points to a series of interesting articles, including my pal Daniel Nemet-Nejat's recent post on the recent popularity of docs.  Agnes takes issue with some of Daniel's reasoning, including his #2 reason:

The rules are there are no rules. With documentary still young as a mainstream commercial force, there is no formula (not yet, anyway) for how to tell a story. Look at the different structures for films like Fahrenheit 9/11, March of the Penguins, Super Size Me and Capturing the Friedmans. The formula for Hollywood movies (and to an extent, even fictional indies) is etched in stone, but with doc, as long as you can find a subject that engages an audience, you are free to tell your story any way you like.

Agnes responds:

I don’t think this is correct. Hollywood films rely on 3-act structure as do docs. Just because Hollywood would prefer to put money into Excorcist III than take a chance on something more original, we can’t make blanket statements like fiction = formula, docs = original. Since docs are being made very independently, they aren’t a class of films that conform to certain norms - they get bought after they are made and the artist has had free reign to create (largely).

If I can weigh in on this point, I think that there is truth in what both are saying.  My new film builds from a classic 3-act structure but incorporates non-traditional ideas about presenting the subject.  I think what Daniel is saying is that it feels like we've only begun to scratch the surface of what documentary or non-fiction can be, and for that reason it feels like a very special time. 

Doc legend Al Maysles recently told Jonny Leahan that he felt most doc filmmakers are stuck in the 1950s:

Well, it - maybe this isn't modest for me to say - but people who are practicing it have still yet to catch up with what we were doing... What we've been doing all these years, it's so much more. Most documentary is still too old fashioned, with straight interviews... you know, anything to get away from the most vital device that it has, which is simply to let the camera not interfere.

I disagree with Al, obviously, in part beccause I don't think that one has to uphold the rules of direct cinema in order to be making true or new nonfiction films.  But I also think that one of the reasons for the upswing in doc production and audiences is that many filmmakers are throwing out everything they were taught or that they previously knew about nonfiction filmmaking.  I don't believe that we are as moribund as he thinks (but God bless him in any case).

Agnes also points to a recent LA Weekly article on Copyright and Fair Use.  While much of Paul Cullum's piece covers ground we've been discussing here and elsewhere (including IFC-TV's much discussed game of chicken with copyright owners, as profiled in the NY Times), it also renews interest in Thom Anderson's acclaimed epic Los Angeles Plays Itself.  My question - why doesn't IFC, which is putting itself on the line for other clip-heavy docs, step in to give Los Angeles Plays Itself the exposure it deserves.  Talk about a PR coup, Evan...

Finally, I've been meaning to weigh in for some time on the Jesus Camp/Michael Moore clusterf*ck, which Indiewire profiled a month ago.  The short of it - Magnolia picks up Jesus Camp and tells Michael Moore's Traverse City Film Festival not to go forward with the (already scheduled) Jesus Camp screening because of the fear that conservatives (a potential audience for Jesus Camp) would stay away if the film was linked to Mr. Liberal Outrage (or is that Mr. Outrageous Liberal) Michael Moore.  A real concern?  A smart bit of publicity for both camps (definitely some of the best press either the fest or the film had gotten)?  Eugene Hernandez, James Isreal and the Cinematical kids all weighed in.  My favorite was this reader comment on Cinematical:

I don't know much about this film "Jesus Camp" or the film festival of Michael Moore, but as a Christian, I would be skeptical about a Christian film (if it is that) appearing near Michael Moore. He has a reputation for being a malevolent slanderer toward the Christian faith.

I have nothing against the man. If Moore appeared on my doorstep suffering and dying, I would take him in and nurse him back to health. But its Moore's ideology that I disagree with. He is entitled to his beliefs and I, mine. Therefore I see nothing wrong with Magnolia pulling this film.

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.

All's Fair Use in Love and Documentary

It's Friday and I'm still thinking about Sunday's NY Times piece on the new brand of fair use hardball being employed by the folks at IFC (the TV network, not the film distributors or the film center in NYC).

Seems that for their recent production of Wanderlust, a survey of American road movies, IFC and the film's producers took a new approach to asking for use of a film clip - take our money or we'll take your clip and pay you nothing. As Elaine Dutka writes:

     "Paramount wanted $20,000 for 119 seconds of 'Paper
     Moon,' " (Producer Alicia) Sams said. "The studios are
     so afraid of exploitation that they set boundaries no one
     will cross. Even after the prices were cut, we were
     $150,000 in the hole."

     Unwilling to pay those fees, IFC's general manager,
     Evan Shapiro, helped Ms. Sams pursue another, more
     aggressive, tack, which may point the way for
     documentarians who want to tap movie iconography
     without paying studio prices. Its strategy involved
     some negotiating hardball, backed up by a willingness
     to fall back on the tricky legal doctrine known as fair
     use.

     Mr. Shapiro called in a Los Angeles entertainment
     lawyer, Michael C. Donaldson, who drilled him on
     copyright law. Under the 165-year-old fair-use
     doctrine, Mr. Shapiro was told, filmmakers, news
     gatherers, critics and educators can access material at
     no cost if they add something to it (like a voice-over),
     don't undermine its value or use more than needed to
     make a point. Free speech trumps private property
     when a project is in the public interest, a term broadly
     defined.

     (...)

     "We're taking on the fight not only with 'Wanderlust' but
     also with the upcoming 'This Film Is Not Yet Rated,' " said
     Mr. Shapiro, referring to a clip-dependent critique of the
     film ratings system set for release in theaters later this
     year. "That was made, from the start, under the fair-use
     doctrine, as all of our documentaries will be from now on."

     Mr. Donaldson began contacting the studios at the Berlin
     film festival in February, initiating talks that dragged on
     for months. Accept $1,000 a title, he said, or IFC will
     move ahead anyway. Though Paramount held firm, 13
     of the 18 copyright holders accepted the offer, including
     Sony Pictures Entertainment, MGM, Universal Studios,
     Miramax Films and Warner Brothers Entertainment,
     whose price was cut from $149,850 to $8,000. In the
     end the clips cost IFC less than $50,000. The holdouts
     advised IFC to rely on the fair-use argument, which,
     after viewing the film, they said they might legally
     challenge. (Mr. Shapiro is ramping up his insurance
     and putting away money in case that happens.)

I had talked in February with Kirby Dick, the director of This Film is Not Yet Rated about their use of fair use and we talked about the landmark work being done by the Center for Social Media, which I praised here (at #2). There's no question that Dick's film, which is an important look at the MPAA, could not have been made without those clips and his argument for fair use, outlined in Dutka's piece, is completely solid:

     While "Wanderlust" employed a hybrid approach, fair
     use was the only option because of the volume of clips
     and the provocative subject matter. Licensing 135
     excerpts at an average of $10,000 each would have
     doubled his budget, Mr. Dick said. And projects that
     ruffle the feathers of the media establishment, he
     suggested, face insurmountable challenges. Some
     licensing agreements prohibit negative portrayal of
     copyright holders, he observed. And others preclude
     the use of the clip in films rated NC-17, which no one
     17 or under can attend. He would be sued for breach
     of contract on both counts, he said, because his
     documentary takes aim at the studios and carries the
     NC-17 tag.

For more on IFC's stand and what it means for filmmakers, check out Evan Shapiro's Captain's Blog, where he further illuminates his position on the issue:

     Corporations have bastardized the interpretation of
     Copyright law for their own means, using the "Mickey
     Mouse" extension, to have corporate Copyrights
     extended to 95 years. The original law was for 14
     years, and was designed to encourage artists to KEEP
     working. The studios desire to charge filmmakers again
     and again for short clips used to make new art and new
     thesises is typical puts the "lazy" in "laissez-faire".
     Frustrated by diminished ticket and dvd sales, they
     would rather collect checks for other people's work,
     rather than let documentarians ply their art.

     Additionally, they intimidate young filmmakers from even
     trying to make these films, by threatening expensive legal
     action. Interestingly enough, when/if these suits ever get
     to trial, the studios almost always lose.

More on this also from our pal Agnes Varnum as well as The Reeler, over at MCN.

The 10 Most Wonderful Things of 2005

And now for some completely personal, completely random, completely belated takes on some things in 2005 that made me smile. It might be a stretch to call these things the 10 most wonderful things, but what the hell, we're already 9 days into 2006. So here goes:

10. Mary Lynn Rajskub on 24

One of the great things about Fox's paranoid, real-time actioner 24 is that it manages to bring in an unusual coalition of truly wonderful actors (and usually kills them off or roughs them up). Roseanne's Sara Gilbert? Killed in a bomb attack. Lukas Haas? Beaten and left for dead near a highway underpass. Larry Sander's old secretary Penny Johnson Jerald? Shot to death after three glorious seasons of treachery.

Then there's Mary Lynn Rajskub, formerly of Mr. Show, Larry Sanders and Punch-Drunk Love, who showed up in season 3 as the nervous, weird, nit-picking, jerkish computer analyst Chloe O'Brian. No request was made of her that wasn't received with a pout or a put-down. Then, midway through last year's fourth season, she picked up a machine gun and took out a terrorist in a charging SUV. Somewhere in between she became the very best thing about a show that is by turns the most exciting and ridiculous television on the air.

Filmmaker or Terrorist?

Very interesting news via Reuters that award-winning Indian documentary filmmaker Rakesh Sharma has filed a lawsuit against the city of New York because police stopped him from shooting and held him, suspecting him of plotting an attack.

Documentary filmmakers have noticed an increase in the number of public sites and businesses that have banned or tried to stop us from filming, usually with 9/11 as a context, but many of us have suspected that the true motive is that cities and businesses have become more aware that feature films can be shot with tiny cameras held by just one guy with no accompanying crew.

Along with questions over fair use, it's long been wondered/undecided whether the traditional journalistic principle of "if you are standing on public property, you can shoot whatever you can see" applies to nonfiction films. Hopefully this lawsuit will go some ways toward answering that question, as well as trimming some of the more draconian laws passed after 9/11.