For Independent Filmmakers
Welcome
Our Independent Filmmaker pages are loosely organized in the chronological order of legal and business matters you might face throughout your project -- from treatment to final cut. Please help us improve our site. If you notice an error or have a suggestion for a link or additional information, please contact us.
THIS WEB SITE HAS BEEN PREPARED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE OR A LEGAL OPINION. ONLY YOUR ATTORNEY CAN ADVISE YOU ABOUT WHICH LAWS ARE APPLICABLE TO YOUR SPECIFIC SITUATION.
The Clearance Culture & Documentary Filmmakers
Digital technology and the Internet are democratizing filmmaking. Today, anyone with a video camera and movie-editing software can make a documentary. But can the aspiring filmmaker afford to make it legally? Just a few years ago the answer often was “no.” Now, thanks to a best practices fair use statement developed and disseminated by their peers, documentary filmmakers are dramatically lowering clearance costs while also respecting copyright ownership.
Clearance costs — the licensing fees paid to copyright holders for permission to use music, text, archival photos and film and news clips — are known for turning low-budget films into very expensive projects.
Consider the critically acclaimed autobiographical documentary Tarnation (2004). Filmmaker Jonathan Caouttee used Super 8 footage, family photo albums, phone messages, DV diaries along with references to1980s pop culture to tell the story of his chaotic upbringing, focusing on his relationship with his mentally ill mother. Famously made on a $218.32 budget and edited on iMovie software, the distributor spent an additional $400,000 on sound, print, score and music clearances to bring the film to theaters.
In a poignant scene in Mad Hot Ballroom, the 2005 documentary that follows elementary-school children in New York City as they learn ballroom dancing and prepare for a competition, a mother’s cell phone rings. The ring tone is “Gonna Fly Now,” the theme from Rocky. Sprint, which owns the ring tone master rights, readily granted permission to use the tone because the company considered it a product placement opportunity. But EMI, the song’s publisher, wanted $10,000 for the six-second ring. Eventually, the filmmakers negotiated a fee of $2,500. In all, they spent $140,000, or 45 percent of their total budget, to clear music rights.
Eye on the Prize, the award-winning 1987 documentary series about the civil rights movement, was produced on such a small budget that the filmmaker could only purchase five-year licenses to the archival material. When those licenses expired, the acclaimed 14-hour series could not be broadcast. Happily, in 2005, the Ford Foundation and a New York-based philanthropist provided the funds necessary to renew the rights to the hundreds of copyrighted film clips, images and music used in the films.
This clearance culture — which assumes that no material, even a snippet, can be used without permission from the copyright owner — eviscerates a fundamental component of our copyright system known as fair use.
Fair use is the right, in some circumstances, to use copyrighted material without asking permission or paying for it. Grounded in the First Amendment, this free expression “safety valve” is probably the most significant limitation of a copyright owner’s exclusive rights to reproduce, distribute and perform their works and to allow others to do so, usually for a fee or royalty.
While courts define what constitutes fair use on a case-by-case basis using the four factors in the 1976 Copyright Act (the purpose and character of the use, the nature of the copyrighted original, the amount of the portion used in relation to the copyrighted work as a whole, and the effect of the use on the market or value for the original work), criticism and comment, news reporting, research and scholarship, parody and limited classroom usually are considered fair.
However, for filmmakers and other creators, the distinction between fair use and infringement is often unclear. There is no specific number of words, lines or musical notes that may safely be taken without permission.
But don’t despair! Thanks to efforts spearheaded by the Center for Social Media at American University, documentary filmmakers now have access to legal guidance that is lowering production costs, reducing frustration and promoting creativity.
The Center began its successful scholarship-in-action journey in 2004 by interviewing 45 independent, professional documentary filmmakers. Its findings and recommendations were reported in “Untold Stories: Creative Consequences of the Rights Culture for Documentary Filmmakers.” The findings were not surprising:
• Rights clearance costs are high, and have escalated dramatically in the last two decades.
• Gatekeepers, such as distributors, grantmakers and insurers, enforce rigid and high-bar rights clearance expectations.
• The rights clearance process is arduous and frustrating, especially around movies and music.
• Rights clearance problems force filmmakers to make changes that adversely affect and limit the public’s access to their work, and the result is significant change in documentary practice.
• Filmmakers, while sometimes seeing themselves as hostages of the “clearance culture,” also are creators of it.
• Filmmakers nonetheless exercise fair use, and imagine a more rational rights environment.
The report’s recommendations included:
• Developing and disseminating models of “best practices”;
• Establishing legal resource centers to support filmmakers; and
• Developing learning materials to build awareness of filmmakers’ fair use rights.
In 2005, following up on the “Untold Stories” recommendations, the Center for Social Media collaborated with five filmmaker associations on A Documentary Filmmakers’ Statement of Best Practices in Fair Use. The 8-page document articulates shared values around fair use and then outlines the most common situations in which documentary filmmakers believe they have the right to use copyrighted material without licensing it.
What are those situations? According to the easy-to-understand and reasonable Statement, they are:
- “Employing copyrighted material as objects of social, political or cultural critique.” Whether the documentary comments directly on the copyrighted material or parodies it, fair use generally applies as long as the producer isn’t just taking the opportunity to use much of the material for free.
- “Quoting copyrighted works of popular culture to illustrate an argument or point.” The producer uses the material for a new purpose with proper attribution and does not take a free ride on the merits of the original, does not use more of it than is necessary, and does not use it simply to avoid the time and expense of coming up with something else.
- “Capturing copyrighted media content in the process of filming something else.” The producer unintentionally catches incidental sounds or images, such as pop music playing on the radio in the background or a family singing “Happy Birthday.” Fair use can’t be used as an inexpensive method of creating a soundtrack.
- “Using copyrighted material in a historical sequence.” The producer must show that a certain image, music or speech is crucial to telling the story, that there is no suitable substitute and that getting permission to use the work is impossible or excessively expensive compared to the film’s budget. The producer can’t simply build a documentary around the material to exploit it, use more than necessary to make a point, use it without attribution or rely disproportionately on a single source.
While the underlying purpose of the Statement is to encourage filmmakers to rely on fair use when appropriate, the Center and their collaborators had two additional goals — to persuade gatekeepers, particularly insurance companies that sell the errors and omissions (“E&O”) policies required for broadcast or commercial release, to accept well-founded assertions of fair use in place of affirmative rights clearance and to provide filmmakers with free or low-cost legal assistance in the unlikely event of litigation.
Much to the surprise and delight of all those involved, the Statement has already changed industry practices. For example, the four insurance companies most commonly used by documentary filmmakers — AIG, Media/Pro, ChubbPro and OneBeacon — have all announced programs that cover fair use claims.
Better yet, Kansas City-based Media/Pro the nation’s largest provider of media liability insurance, made a groundbreaking arrangement with Stanford University’s Fair Use Project and a panel of entertainment lawyers including Michael E. Donaldson, author of Clearance and Copyright. Media/Pro now offers E&O insurance policies for filmmakers who make use of unlicensed copyrighted material, but comply with the Best Practices. So now filmmakers have access to affordable insurance that permits them to exercise their fair use rights.
The Fair Use Project, in turn, has gone a step further. Stanford’s project will provide pro bono legal services to pre-certified films. If Stanford is unable to provide free services, then Donaldson’s law firm will provide referrals to a number of media lawyers who will provide representation at a reduced rate.
VLAA encourages filmmakers to assert their rights by using the Statement and to tell others filmmakers about the Statement’s effectiveness.
We also recommends Bound by Law? published by Duke University School of Law. This entertaining comic book on copyright law features a filmmaker named Akiko who is planning to shoot a documentary in New York City. She is confused about which aspects of city life — from Broadway marquees to songs played by street musicians — can be included in her film under the fair use doctrine. Authors Keith Aoki, James Boyle and Jennifer Jenkins explain the basics of copyright in plain English, while using the arts to educate the arts community.
