All Fair Use And No License Fees Makes Room 237 An Interesting Test Case

from the and-other-thinly-veiled-references-from-the-shining dept

With the simultaneous efforts to both assert fair use as a right of the public and the government's aim to limit its application, I always find it interesting to watch creators' attitudes and reactions to the complicated navigation of using copyrighted material in their own works. One might say it's like trying to get through a bush maze in the dead of winter. Often times the threat of legal action simply kills off a film that would have otherwise been made, or dulls it considerably because relevant source material is omitted.

But more interesting is when a creator simply goes for the gusto, so to speak. Justin Levine writes in about a documentary film producer and his feature length film about supposed hidden messages in Stanley Kubrick's The Shining. The article discusses Rodney Ascher's plan to release the film, which is rife with clips from the original movie, without even attempting to contact Warner Brothers, the company which holds the copyright for Kubrick's film.

The 102-minute documentary deconstructs hidden meanings in Stanley Kubrick’s 1980 adaptation of Stephen King’s horror novel “The Shining” — mostly by showing sequences from the actual film, a copyrighted work owned by Warner Bros. Since its Sundance debut in January, Ascher’s film has been acquired for distribution by IFC Midnight and snagged slots in the Cannes Film Festival’s Directors’ Fortnight and Toronto film festival’s Vanguard sidebars. It will have an awards-qualifying run at the end of the year followed by a March release.

For this one, Ascher has no choice but to go down the rabbit hole of proving that the footage he’s used falls under fair use, which would prevent him from having to pay hefty licensing fees to WB or being sued for showing the film in theaters.

The use of the film in this instance should certainly be covered by fair use, but one of the problems with fair use is you never really know until a court says so. In fact, the article appears to be slightly misleading in stating that Ascher has to “prove fair” use or risk being sued. The only opportunity he would really have to officially “prove” his use is covered would be after being sued, which is a big part of the problem in all this. The scenes are utilized as needed and context is clearly added. That said, Ascher's decision to simply rely on fair use entirely to pay zero licensing fees to Warner Brothers is a break from how other documentarians have utilized it in the past. It's unfortunately far more common for film producers to try to use fair use claims to merely negotiate license fees down, rather than to avoid paying the unnecessary fees at all. Entertainment lawyer Michael C. Donaldson serves as one example in the article.

According to Donaldson, clearing the rights for a mere 30-second clip from a studio film can cost between $6,000 and $8,000, an astronomical figure for an independently produced film. He often gets the studio to lower its fee after sending a package complete with a DVD on fair use and examples of litigation over the years. In one instance with a studio last year, he got the fee dropped from $45,000 to $15,000.

This negotiating of fees has been a contentious subject for copyright holders who feel they are being exploited. “This is where I take [Donaldson] to task,” says Cathy Carapella, who handles rights and clearances for Global ImageWorks and speaks on fair-use issues for the nonprofit Association of Commercial Stock Image Licensors. “If it’s fair use, why offer to pay for anything?”

This is how the weakness of fair use has resulted in a broken system that stifles culture. With such ill-defined parameters for what is only a defense, fair use becomes less about the right of creators to add to our cultural output and more about negotiation over the fees to do so. Carapella's culminating question is obviously ridiculous. The reason to pay despite content being fair use is because the type of fair use we have lacks the teeth required to satiate insurers of films. The fear is that even clear fair use instances will be litigated against, because the rules are so ambiguous. That's what makes the actions of Ascher so important: it's a clear line in the sand. No fees, all fair use. We'll just have to see how Warner Brothers reacts.

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Comments on “All Fair Use And No License Fees Makes Room 237 An Interesting Test Case”

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Anonymous Coward says:

We’ ll just have to see how Warner Brothers reacts.

Lawyers. A swarm of lawyers numbering greater than the stars in the sky. They will swoop down and devour him, his loved ones, and his very land, leaving nothing but bleached bones, barren earth, crushed hopes, and ruined dreams. So has it ever been, and so shall it ever be.

gorehound (profile) says:

Jewish Film Institute tried to Charge me thousands of Dollars just to use a minute or two of footage which had been filmed in the next Village to my Dad’s Village in 1935 Carpathian Ruthenia.I tried to tell them my Dad knows this Village an
d was there often.We even had family there but these guys were A-Holes and would not allow me to use it in my Non-Profit Effort.
So, I asked for an SVHS Master with Time code in order to be able to use the footage.And I ripped whatever I needed anyways.
Rare Footage of Rural Jewish Life Uploaded to youtube in Unedited Form.sharing this jem with the World !
Check it out if you are interested in what real Rural Jewish Life looked like before WW2.

Anonymous Coward says:

Re: :(

There is no proof of any action being wrongful. As Timothy mentioned (but glosses over a bit), fair use is not a fixed absolute in law, it’s a concept with a system of measurements and decision points, and you don’t have to be absolutely true on them to be either fair use or infringing.

Remember also, fair use is basically, “yes, I am using the content without permission, but I think it’s fair use because….”. Fair use in legal terms isn’t a slam dunk, almost without exception.

Finally, Timothy also leaves out a basic points: Getting the rights holder involved and on side is way better than trying to fight it out later. Getting the rights secured up front, before you have completed a project, is a way to avoid disappointments and legal troubles.

Some rights holders are just very difficult to deal with, and they will fight down to the last second against fair use claims. Right or wrong, it’s what the US legal system allows, not just copyright. If they choose to litigate, and do so in general good faith, there is little to do but allow the case to follow it’s course. It can be very costly to prove you have the right, and it can take quite a bit of time to wander things through the legal system and all the appeals and whatnot. Some people consider it a failing of the copyright system, but honestly, it’s more a failing of the US legal system. There are too many appeal points, to many ways to spend the other side’s money on meaningless motions, discovery, venue change requests, and so on, to the point where it’s hard to get anything done. Don’t blame copyright, blame the entire system, it’s really what is choking the US now.

crade (profile) says:

Re: Re: :(

Timothy doesn’t leave our your basic points.. Thats the whole point. The whole problem is that getting the rights secured up front is always better even when you believe you are a fair use case. You are guilty until proven innocent, basically defeating the whole point of fair use which is to define cases where it’s been decided that it’s important for society that permission isn’t needed.

Keroberos (profile) says:

Re: Re: :(

Remember also, fair use is basically, “yes, I am using the content without permission, but I think it’s fair use because….”. Fair use in legal terms isn’t a slam dunk, almost without exception.

Some people consider it a failing of the copyright system,

This is the problem, It should be a slam dunk. And yes, it is a failing of copyright system. If Congress thinks they can rigidly define what copyright is, they can rigidly define fair use rights. They’ve just never tried–it would piss off the Hollywood lobbyists.

Copyright is a right granted to creators–BY US, THE PEOPLE–for commercial gain from OUR property–because, yes, once something is published it becomes the property of everyone. We allow creators the right of commercial compensation because we somewhat believe that to be good for the people (potential for more content to be created). We reserve the RIGHT of fair use to ourselves–because again–it is our property. We should not have to ask for permission for non-commercial or commentarial purposes. Having to ask the rights-holder for permission to exercise our fair use rights is by default creating another form of copyright.

Kudos to Rodney Ascher for having the stones to exercise his rights and not suck up to Warner Bros.

Anonymous Coward says:

Re: Re: Re: :(

” We reserve the RIGHT of fair use to ourselves–because again–it is our property.”

The problem is the way you are phrasing it is not how it is in law.

In law, you give over all of the rights, and then you get fair use it applicable. But the default in the system is that if you want to have fair use, you need to be ready to justify it. You have to valid reason, not just “it’s our property”. It’s not your property, at least for the next 70 years.

Ophelia Millais says:

Re: Re: :(

The rights holder who sues over fair use always pretends they would’ve licensed it for cheap if they had been asked, but since they weren’t asked, they need to send a message by suing for millions. You seem to be saying it’s better to ask, for this reason.

A friend of a friend is an author who recently ran into this with a major book publisher. She had a very clear-cut case of fair use of quotes, all four prongs easily met, but out of paranoia, she asked for permission anyway. Do you think the answer was “oh, that’s fair use, you don’t need our permission”? I’ll give you a hint: after hearing the answer, she abandoned the project.

How is this good for anyone?

John says:

Can’t wait to see how this one pans out.

If he wins, this will be very good for the documentary genre.

I have been too scared of using footage from things I would like to but seem reasonable due to stupid copyright being able to shoot you down without warning.

It shouldn’t be those with the biggest wallet for lawyers that win in a sane world. This is particularly relevant to documentary as it is clearly speech.

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