Comic Strip Documentary Filmmakers Return To Kickstarter Because They're Scared Fair Use Won't Protect Them

from the that's-unfortunate dept

A year and a half ago, two documentary filmmakers, Dave Kellett & Fred Schroeder, used Kickstarter to raise $109,025 for their film, Stripped, all about the comics industry — covering both old time newspaper comic artists and the new generation of web comic artists (and the ongoing transition between the past and the future). Some were a bit surprised that the two popped back up on Kickstarter recently seeking to raise (at least) another $33,560, despite the original campaign and the fact that they say the movie is done:

So here’s the great news: The movie is essentially *done*. It’s filmed, edited, scored, and test-screened. Even the final sound mix, color correction, and closed captioning have already been budgeted for, thanks to the support of comics creators and fans.

In fact, the film looks really quite awesome. The bits with the “old guard,” bitching about how, without newspapers, they can’t make money, juxtaposed with the new guard (including the awesome quote: “get with the times, old man!”) talking about how much opportunity there is, really fit well with the sort of business model discussions we have around here all the time.

So, if the film is all ready, why go back to the well? Copyright law, apparently. They note that many of the artists and copyright holders were extremely cool and signed off on using their works and clips and whatnot for free. But not all:

We’re using over 500 separate, copyrighted works in the film (400+ images, dozens of new and existing songs, and dozens of historical clips from TV, film, and newsreels). In all cases, we’re seeking the global right to use footage/music/images in the documentary, in perpetuity, in all current and future mediums the film might show in. In 98% of these cases, the copyright holders have been amazingly generous, and given permission without fees, and with huge kindness.

But, then there’s the 2% who are playing Scrooge, and saying “pay me, pay me, pay me.” Total bill? $51,805 to get all the clips they want. They set a lower $33,560 tier to get what they consider the “essential” clips into the film, but are hoping for all of the clips to be licensed. They even made a handy dandy chart showing exactly how much everyone wanted:

But, what about fair use? Well, a few years back, I wrote about a panel discussion I attended with some documentary filmmakers, entirely about fair use, in which they more or less said that you can rely on fair use if you want, but you’re basically screwed if you do, because no partners will touch the film. You can’t get E&O (errors & omissions) insurance without a crazy long list of every single clip and the details of it being licensed, and without E&O insurance, no one will distribute or show the film. Basically, fair use is useless for documentary filmmakers in many cases. Yes, folks like the Center for Social Media at American University have put together a Documentary Filmmakers Statement of Best Practices in Fair Use, hoping that this will calm the fears of insurance providers and third parties, so long as the filmmakers stick to the listed “best practices,” but it’s still a scary world out there.

In this case, the filmmakers go through a lengthy and detailed explanation for why they don’t want to rely on fair use, and most of it details the basic chilling effects we’re used to: you can’t be sure until a court decides, a trial is lengthy and expensive (and a distraction from everything else), if they lose, the expense from statutory damages will be massive, etc. You can read the whole statement, but here’s an abbreviated version, highlighting the key points that specifically have to do with copyright and fair use:

Ultimately, it comes down to three reasons: Potential lawsuits, how those potential lawsuits limit who sees the film, and cost…. We’re hoping to distribute this film globally, not just in the U.S. So even if U.S. Fair Use would allow usage in the States, we’d still need to get clearance from the copyright holders elsewhere, country by country, in places where the Fair Use/Fair Lending laws differ…. we’d need to de-encrypt it from a DVD…which is illegal under the DMCA….

There are Fair Use lawsuits still working their way through the courts, having started in 2006. So at some point you have to ask yourself: Do you want to live in court? In the chance we end up being legally in the wrong about a claim of “Fair Usage” for this or that bit of footage, the statutory damages on copyright infringement could be pretty devastating to a little indie film like this. Even the legal fees to defend one court case (from among 500 separate pieces of copyrighted work, remember) could be a huge financial hit.

Even if we were absolutely sure of our Fair Use rights, absolutely sure of our ability to win in court, and absolutely sure that we’d be willing to devote a few years and tens of thousands toward defending that in court…we’d still have to get other stake-holders to accept that same liability. Distributors, networks, broadcasters, “Errors & Omissions Insurance” underwriters — they’d all need to be willing to take on that same risk that our Fair Use was legally sound. That could be a deal-killer: You could end up with a completed film that wouldn’t be shown or broadcast anywhere.

But the biggest one, for us, is… [we] want to be artists, not litigants. We want to make a film that celebrates the art of cartooning, not fight off a Fair Use lawsuit in court.

That said, they do name two other, non-copyright (directly) reasons for this, with the key one being that they want to ask for permission out of respect for the artists. That’s a perfectly legitimate argument, but given that so many others donated the license for free, it still seems a little bit ridiculous for others to hold out, even if it is their legal right (fair use, notwithstanding). The other issue is that some of the works just aren’t available or aren’t available in high definition, without going to someone’s private collection. And, obviously, they’re not going to share that content without granting permission. That’s a bit more understandable, but in the end, fair use is supposed to be about making these kinds of works available, and it’s shame that, instead, it’s just about taking money away from the artists who created this awesome looking film, and handing it over to (mostly) giant corporations, even though the film is mostly celebrating and promoting those other works.

Filed Under: comics, copyright, culture, documentary, fair use, stripped