Copyright As Censorship: Filmmaker Gets Fair Use Clip Removed From Documentary Over Copyright Claim

from the can't-criticize-without-a-license? dept

Justin Levine points us to yet another example of copyright law being used (successfully, unfortunately) for censorship. Elaine Kim, a UC Berkeley professor, made a documentary called Slaying the Dragon: Reloaded, which takes a critical look at how Asian women are portrayed in film and television. In doing so, she obviously used many clips from the videos that she was critiquing. And, while the big Hollywood studios (whose work is a large part of the focus) haven't complained, a group of six Asian American filmmakers have tried to claim that she infringed on their works by using the clips in her film without licensing.

Of course, this is a pretty clear cut case of fair use. I'd be amazed if anyone tried to make a reasonable case that using these clips wouldn't qualify as fair use. As John Diaz notes in the article linked above, she uses very short clips, and she does so for "social, political and cultural critique," which puts her on very solid fair use grounds. However, as he notes at the end of the article, Professor Kim still removed the clips of one of the more vocal filmmakers who demanded a license, saying that "we do not have the time or resources to fight against a filmmaker that personally attacked us and was being unreasonable."

This is unfortunate, and a clear case of using copyright as censorship. Even if the use was fair use, just the threat of a copyright claim against someone can and will (in this case, clearly) create serious chilling effects on speech. That's a serious concern, and it's a shame that some are choosing to mock the serious concerns of how copyright is used for censorship in this manner.

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  1. identicon
    Dave from Canada, 1 Apr 2011 @ 11:42am

    Sensational headline

    I don't see this as being a case of censorship in the way most people would think of censorship. Usually we think of censorship as being for an unjustifiable moral, political, or reputational reason. This is technically censorship because something wasn't able to be used because of a 3rd party, but this appears to be a typical disagreement that the courts were set up to solve. The indie film-maker, who may not have even recouped their investment on the film, thinks they should be paid for their clip which they spent money to create. The doc maker thinks no, it's clearly fair use.

    Given what the article says, I think it probably is fair use, but if the 2 sides can't agree then the courts are there. I definitely don't agree with AC #8 when he/she says, "It means that some asshat is willing to abuse the legal system to prevent someone from exercising their rights." There is no abuse. This is what the legal system was set up to solve. If you want to find a solution, you need to look at making the legal system more affordable.

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