Fair Use And Films: Does Running Everything By The Lawyers Really Improve Your Film?

from the unless-it's-about-copyright-infringement... dept

Tue, Jan 12th 2010 9:55am — Mike Masnick

After the panel discussion on ACTA, a special "Fair Use Film Screening" (again, as a part of World's Fair Use Day) was held in the same building, in the offices of the law firm Dewey & LeBoeuf, which was quite a lot of fun. It really wasn't so much a "film screening" as it was a panel discussion with a few short film clips shown. The panel consisted of Mark Hosler of the band Negativland as the moderator (who, of course, went through the fair use battles before many of the younger generation was even born, let alone had to consider this stuff), along with Brett Gaylor, discussing his film RIP: A Remix Manifesto and Kembrew McLeod, discussing his film Copyright Criminals.

One point that stood out from both McLeod and Gaylor was the difficulties and legal hurdles each had to go through to even complete these movies. Since they dealt with so many examples of mashups and samples, all of the legal questions that applied to the mashups and samples themselves in some ways applied to the movies as well. In both cases, they spent an awful lot of time with lawyers -- even when it came to artistic editing decisions, in order to do their best to keep the films "legal." Many in the audience were surprised when both said that, in some ways, the lawyers' demands actually helped them make better films -- but Nina Paley (who I finally met) chimed in from the audience to point out that it makes sense that copyright lawyers would help in making a better film about copyright law -- but that was probably one of a very small number of situations where movie makers would benefit from the editing suggestions of a bunch of lawyers.

The other thing that came out in the discussion was that both filmmakers are still a bit unsure about the legality of their films. They both have pretty strong backing from people who insist their films are above the law, but it's a bit of an open question. Kembrew's film, in particular, may run into some big questions fairly soon. His film will be airing on PBS next week (check your local listings) and while he was careful to try to license much of the music in the film, it was quite an impossible task. He noted how silly it was that if you want to use a hiphop song that uses 20 samples, you need to get licenses for both the recording and the songwriting (publishing) for the song itself and for each of the 20 songs sampled -- and even if you agreed to a $10,000 license per sample for the first 19 rights holders, if the 20th came along and demanded $30,000, you then had to go back and pay all the others $30,000 as well.

So his film contains many unlicensed clips -- including one of a George Clinton track, that Bridgeport claims ownership on. You may recall Bridgeport -- they're the company that claims to hold the rights to a ton of George Clinton music (though Clinton claims his signature was forged by Bridgeport) and has sued hundreds of hiphop artists who have sampled Clinton's works (Clinton tends to like the fact that hiphop artists sample his music). Kembrew tried to clear the right with Bridgeport, and received an amusing (if troubling) call from someone there after many, many attempts to contact them. After picking up the phone and being told that someone from Bridgeport was getting on the line, suddenly a voice on the other end yelled "DENIED!" After trying to respond to that, the guy against just said "DENIED! No reason given!" and hung up.

However, the PBS version is going forward with that clip included -- though, PBS is lucky in that it (alone) has a compulsory rate that it can pay for publishing (not recording) rights on music. Yet, the DVD copy of Kembrew's movie had to remove that scene and insert a different scene instead.

Both Gaylor and Kembrew detailed the insane lengths they had to go through to try to get Errors and Omissions (E&O) insurance, which many places require before showing a film. Kembrew actually was able to secure E&O insurance, though it was quite a hassle. Gaylor tried to, but eventually gave up, as it was just too troubling. He did, however, show a spreadsheet that he had to put together during the process of trying to get it, which went through every clip in the film, detailing where the content had come from, noting the exact length of the content, what it was used for and an explanation of why it was either licensed or fair use. The document was incredible, and Nina asked him to share it with the world so people could understand the level of ridiculousness that filmmakers had to go through. While Gaylor said he would do so, a lawyer in the audience advised him against it, suggesting it might open him up to a lawsuit.

While all of this may have sounded frustrating, the overall tone of the panel was quite optimistic. As in the post we had yesterday about the copyright bubble, the general consensus was that the younger generation today has learned to disregard copyright law. Hosler talked about how he used to have to explain the ins-and-outs of copyright law the high school and college kids when he did presentations on fair use, and now they already get it and already understand how ridiculous the laws are. It's that generation -- the ones who are growing up listening to Girl Talk and who see things like Kutiman as brilliant -- who are now understanding quite deeply what an obsolete concept traditional copyright really is in these situations. As they get older, the panel agreed, the laws would eventually catch up to reality. It might not be pretty, and there were plenty in the older generation who would lash out, misunderstand and react badly -- but the end result is inevitable.

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Filed Under: brett gaylor, copyright, fair use, films, kembrew mcleod, mark hosler

33 Comments

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The Anti-Mike (profile), 12 Jan 2010 @ 10:00am

As in the post we had yesterday about the copyright bubble

Can you say "bootstrapping"? I knew you could.
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Free Capitalist (profile), 12 Jan 2010 @ 10:11am

Re:
Welcome to Techdirt. Enjoy the themes. Chain your own metaphors. Actually most readers here will think you are making lazy comments about another POST.

Come ON TAM, you can do better than that!
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Derek Bredensteiner (profile), 12 Jan 2010 @ 10:18am

Re:
Is your implication that there's no support for the assertion that "younger folk don't respect copyright" in either of those examples (1. The slashdot essay, 2. This panel) aside from each other? Isn't that what you mean by bootstrapping, supporting a false assertion with examples dependent on each other? Or do you just mean anytime Mike references a previous article?

Are you under the impression that generations growing up with the internet do have a great respect for intellectual property?
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btr1701 (profile), 12 Jan 2010 @ 10:39am

Lawsuit
> While Gaylor said he would do so, a lawyer
> in the audience advised him against it, suggesting
> it might open him up to a lawsuit.

Did the lawyer say why it could lead to a lawsuit? I'd be curious to know what legal basis someone could have for suing a filmmaker for sharing the process he went through to secure a completion bond.
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The Anti-Mike (profile), 12 Jan 2010 @ 10:41am

Re: Re:
No, the bootstrapping is taking an opinion piece, and then link to it as if it is face. It was a post about the "concept of a copyright bubble", but rather stated as a fact "the copyright bubble".

The original post on techdirt is an opinion of an opinion piece from another writer, not fact. The link in this post makes it appear that a copyright bubble is a fact, not just a concept from a writer.

Are you under the impression that generations growing up with the internet do have a great respect for intellectual property?

Actually, something I noticed recently is that when people really like something or think something is great, they will purposely go out and pay for it, even if they could download it for free. I think they still respect the creators and understand the ideas, but they have been brought up in a mob mentality that makes copyright an optional concept. It is something that they will grow out of when they start actually producing their own stuff and realize that they can't follow their dreams if they can't make a living at it.
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Mike Masnick (profile), 12 Jan 2010 @ 10:57am

Re: Lawsuit
Did the lawyer say why it could lead to a lawsuit? I'd be curious to know what legal basis someone could have for suing a filmmaker for sharing the process he went through to secure a completion bond.

I believe the argument is that it would make it easier to make the case of infringement, in that the filmmaker was basically highlighting what he used. Otherwise, those copyright holders would have to seek it out themselves to figure it out.

But, I'm not sure.
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The Infamous Joe (profile), 12 Jan 2010 @ 10:59am

Re: Re: Re:
The link in this post makes it appear that a copyright bubble is a fact, not just a concept from a writer.

"As in the post we had yesterday about the copyright bubble, the general consensus was that the younger generation today has learned to disregard copyright law."

Furthermore, linking to the article you are referencing doesn't imply that the destination is a fact, only that it is what you're talking about. For example: "This guy is a tool." The link doesn't prove (or disprove) a fact, is merely referenced in greater detail the subject of the sentence.

I think they still respect the creators and understand the ideas, but they have been brought up in a mob mentality that makes copyright an optional concept.

If a monopoly is optional, then it's not a monopoly. The fact that the younger generation sees copyrights as an *option* when they are no doubt using their parent's money to purchase things is only going to get worse when they have to use their own, presumably hard-earned money.
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The Infamous Joe (profile), 12 Jan 2010 @ 11:01am

Re: Re: Lawsuit
Like how many companies will intentionally neglect to research patents in the area they are working in to make it easier to put up a defense against "willful infringement"?

'Tis a sad world we live in.
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Jimr (profile), 12 Jan 2010 @ 11:02am

With lawyers editing the films how could they fail? Explains why so many movies lack originality and generally suck.
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The Anti-Mike (profile), 12 Jan 2010 @ 11:07am

Re: Re: Re: Re:
It isn't the link by itself, it's the reference to an opinion as if it fact.

If I post here "I think IMfamous Joe is a fool" and then tomorrow post a link in another thread that says "we were just discussing yesterday that Imfamous Joe is a fool",what I have done is promote my opinion to a "fact", when it is really still an opinion.

Worse, a few months later, I reference the second thread, and say, "look another post by that well known fool joe".

That is bootstrapping, taking opinion and turning it into fact. It's the "lead to gold" techdirt process :)
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ttrygve, 12 Jan 2010 @ 11:24am

the next generation
The conclusion seems a little overly optimistic, I think. Sure, a new generation will grow up seeing more clearly what's wrong with the system than the last generation, but corporate interests will largely remain unchanged, and their lobbying influence, if history is any guide, will only have grown.
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Trevor, 12 Jan 2010 @ 11:26am

Re: Re: Re: Lawsuit
"Like how many companies will intentionally neglect to research patents in the area they are working in to make it easier to put up a defense against "willful infringement"?
"

As a matter of fact, some (if not many) have been doing this for quite a while. Two years ago I was working as a software developer at a US company that develops hardware and software for network testing. Around that time the top management of that company got into a frenzy about filing for patents as insurance against our biggest competitor on our market segment. The mid-level managers told us to start looking for anything and everything that seemed even remotely patentable among what we were working on and to file patent proposals. When I asked if looking through existing patents in order to see what might be patentable, they said that whatever we do, we MUST NOT start researching existing patents because if we discovered that what we were proposing was already patented, then we would instantly get the company into a willful infringement situation. The result was that no one did any kind of patent research and we went straight ahead with writing the patent proposals.

I think that it would be a fair assumption to make that many companies operate in this manner on a regular basis.
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jjmsan (profile), 12 Jan 2010 @ 11:26am

Re: Re:
He is doing better. Essentially by using a a badly worded comment he is hijacking the thread so the comments are about what he said rather than the post. Usually it is better to ignore him.
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ChurchHatesTucker (profile), 12 Jan 2010 @ 11:27am

Re: Re: Re: Re: Re:
"If I post here "I think IMfamous Joe is a fool" and then tomorrow post a link in another thread that says "we were just discussing yesterday that Imfamous Joe is a fool",what I have done is promote my opinion to a "fact", when it is really still an opinion."

Not really. What you've done is said, "I've already demonstrated that IMfamous is a fool, and, BTW, here's my evidence."

It's imperfect, but that's pretty much how human beings roll.
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jjmsan (profile), 12 Jan 2010 @ 11:31am

Re: the next generation
The focus of the corporations will likely change however. It isn't that coporations hate change they just hate change that doesn't allow them to make more money. Eventually they will figure out how to make money off of the unlimited supply model and will no longer push for these laws.
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Dark Helmet (profile), 12 Jan 2010 @ 11:39am

Re: Re: Re:
"Actually, something I noticed recently is that when people really like something or think something is great, they will purposely go out and pay for it, even if they could download it for free."

Accept my congratulations. You are starting to understand what we're talking about here, and how RtB can be one tool to combat infringement....
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Ryan, 12 Jan 2010 @ 11:46am

Re: the next generation
Corporate interests are usually ultimately profit maximization, as they are for most individuals and non-corporate entities as well. What has led to the current dilemma is not lobbying per se, but that the technological changes that have undermined their natural monopolies are new enough for society and dangerous enough to the affected parties that the former are not yet interested enough to offset the efforts of the latter to make it politically untenable for politicians to make laws that are explicitly anti-consumerist. Eventually, government support for these things will erode as it did during Prohibition, especially as enforcement becomes even harder.

Nevertheless, their lobbying influence--directly related to the size of government and its interference--certainly prolongs the transition. I'm guessing the forming backlash against Obamanomics will help reverse that trend, however.
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Ryan, 12 Jan 2010 @ 11:50am

Re: Re: the next generation
I doubt many legacy companies would make this transformation; they will lobby to the death, or until it becomes sufficiently obvious to them that they're in a losing battle. Factors that will make a difference are increasing difficulty of enforcement, political jadedness, and increased competition(which has been stunted by the government) that realize that very thing.
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The Infamous Joe (profile), 12 Jan 2010 @ 12:32pm

Re: Re: Re: Re: Re:
Despite my foolishness, merely saying we discussed something yesterday doesn't mean that because we discussed it yesterday it is a fact. It means that it was discussed yesterday. Linking to that discussion would just tell me "Here it is if you'd like to read it."

Maybe that's your problem, you think everything in the past is fact? Or maybe every discussion results in a solution? I don't know.
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zcat (profile), 12 Jan 2010 @ 1:46pm

Re: Re: Re: Re: Lawsuit
My understanding is that it is completely standard procedure in all software development, both FOSS and proprietary software. Software developers are always advised to _never_ look at patents.
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Anonymous Coward, 12 Jan 2010 @ 2:04pm

Re: Re:
>>Are you under the impression that
>>generations growing up with the internet
>>do have a great respect for intellectual property?

I think so. Considering that music and movie industries seem to be holding steady, and in some cases continue to expand in a downward economy, it's quite possible that the system works.

Unfortunately, the formal message from IP folks is that the current system doesn't work and more protections are needed.

As an example, we've heard a constant banter for more than two decades from the music industry about supposedly shrinking profits. However, the #1 seller of music today, has nearly a 25% marketshare and their storefront exists solely over the internet.

If IP-related industries fully embraced the idea of the internet as a legitimate sales channel, and created marking strategies around it, they would probably be very successful.

The market is speaking very loudly that they desire this approach. It's just sad that they decide to politicize it, and pretend to "need" more protections before fully embracing it.
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btr1701 (profile), 12 Jan 2010 @ 2:25pm

Re: Re: Re: Re: Lawsuit
> they said that whatever we do, we MUST NOT start researching
> existing patents because if we discovered that what we were
> proposing was already patented, then we would instantly get
> the company into a willful infringement situation

In criminal law, this is called willful blindness and would not excuse liability. The classic example is the drug dealer in Mexico who approached an American and offered to pay him $5000 for driving a car across the border and leaving it an a shopping center on the other side. The drug dealer specifically told him not to look in the trunk.

When the American was stopped by the Border Patrol and 100 pounds of weed were found in the trunk, the court ruled that it was no excuse that the guy didn't know what was in the trunk; it said that he was being willfully blind to a situation where some kind of criminal activity was likely in order to circumvent the laws intent requirement.

Seems like the same thing would (or should) apply to patent law. If a company purposely doesn't research patents in order to be willfully blind to infringement, then it should be no excuse. I would think patent research would be a basic form of due diligence required of all companies as a matter of course and good business practices.
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btr1701 (profile), 12 Jan 2010 @ 2:26pm

Re: Re: Lawsuit
Thanks for the response. I guess I could see how that might lead to some kind of lawsuit in this insane world we live in, however he doesn't need to share that document in order for it to lead to a lawsuit. The document's mere existence (and his public advertisement of its existence) would be enough to lead a potential plaintiff to file the suit and then obtain the document in discovery.
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Anonymous Coward, 12 Jan 2010 @ 2:29pm

Re: Re: Re: Re:
Exactly. But, if people are given a chance, typically they will do the right thing. Those who don't cater to the new distribution methods are just shooting themselves in the foot.

I remain curious as to why you're suddenly claiming RtB as your own. Recently you said you have two dogs. But I wonder if these dogs have helped with raccoon problems sneaking into your house. These days, many people have raccoon problems. Nasty raccoons!

Myself, I have foxes and deer that wander into my yard.
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The Anti-Mike (profile), 12 Jan 2010 @ 3:07pm

Re: Re: Re: Re: Re: Re:
Except for one simple problem: I offered no evidence, just an opinion. When I say today that "infamous joe is a fool" I am making an affirmative statement, which has not been entirely proven to be true all the time (waffling I go!).

Over time, I can continue to make the same (somewhat) false statement, act like it's fact, and sooner or later, most people take it as fact.

I suspect (no proof offered) that many of the readers of a given post on this site might mistake some of these opinions for fact, as they are presented in other posts. Mike certainly would have the stats to show how many people actually click the links to read those underlying stories. Sadly, those stories often have underlying story links as well, which means you need to read the entire site to separate fact from opinion.
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Anonymous Coward, 12 Jan 2010 @ 4:03pm

Re: Re: Re: Re: Re: Re: Re:
Wow, TAM, this sounds more like a personal problem than a business problem. I can say from experience that many of the concepts thrown around here are on a higher level of business maturity, perhaps in the midst of being implemented.

So go ahead and waffle yourself on over to the waffle house because we won't be able to help you maintain the status quo here. But if you're going to continue to portray yourself as some sort of "expert antagonist" to Mike, well, you need to read an entirely different site to separate your own reality from what we're trying to create.
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The Anti-Mike (profile), 12 Jan 2010 @ 4:16pm

Re: Re: Re: Re:
Actually, it touches a major problem: they will pay for it, and are only NOT paying for things because they feel no need to do so.

I suspect that these people, if put in the position to actually have to pay for all the music the "own" would suddenly become much more selective in the music they "own".

The other issue is that no matter how good the product is today, they won't buy it tomorrow, but will expect something even better tomorrow, the day after, they will refuse to pay for that as well.

The RtB is transient. the reason to download it for free and not give a damn is as ingrained as "snitches get stitches", and just as self defeating.
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Anonymous Coward, 12 Jan 2010 @ 5:24pm

Re: Re: Re: Re: Re:
Culture is free.
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Anonymous Coward, 12 Jan 2010 @ 6:05pm

Re: Re: Re: Re: Re:
"I suspect that these people, if put in the position to actually have to pay for all the music the "own" would suddenly become much more selective in the music they "own"."

I suspect that if the oceans turned into alcohol overnight, people would get very drunk.

Look, I can have irrelevant fantasy-land suspicions too!
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Anonymous Coward, 12 Jan 2010 @ 7:21pm

Re: Re: Re: Re: Re: Lawsuit
Your example is the minority. Most of the time, if the court cannot prove that the driver knew or owned the vehicle, themselves, they cannot prosecute.
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btr1701 (profile), 13 Jan 2010 @ 4:53am

Re: Re: Re: Re: Re: Re: Lawsuit
> Your example is the minority.

Actually, it's not. The case I described established the principle of willful blindness which has since been used to convict scores of people.

> if the court cannot prove that the driver knew
> or owned the vehicle

The court doesn't prove anything in any case. The court is a neutral arbiter of the facts. The prosecution is tasked with proving its case, not the court.

As for the second half of your comment, I have no idea what that even means. There's no requirement that a driver "know the vehicle". A vehicle is an inanimate object, not a person, so proving that someone "knows a vehicle" makes no sense.
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Dementia (profile), 13 Jan 2010 @ 7:05am

Re: Re: Re: Re: Re:
"The other issue is that no matter how good the product is today, they won't buy it tomorrow, but will expect something even better tomorrow, the day after, they will refuse to pay for that as well."

And since the whole intent of copyright was to give a Limited Time monopoly, after which the material would become PUBLIC DOMAIN and be free, what exactly is your point
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Dementia (profile), 13 Jan 2010 @ 7:08am

Re: Re: Re: Re: Re: Lawsuit
The issue here is that copyright and patent issues are civil issues, not criminal.
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