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
    Anonymous Coward, 1 Apr 2011 @ 12:48pm

    Re: Re:

    Permission is not necessary for fair use.

    You are right, but you are wrong in another way: Fair use is not carved in stone, so the problem is that it may be fair use, it may not be. Rather than take a chance, making your movie only to discover that some people object, perhaps asking permission might get you past the hurdles... or at least make you look at other clips that you can easily get permission on. It's called avoiding a fight. Fair use is defensible, but may require you to put up a defense, which can cost you.

    Fair use is specific to each situation (each piece of copyrighted content). You don't get to lump everything together so you can get around the clear fair use.

    Again, not clear. Since fair use isn't cast in stone, since the rules are grey all over, this is potentially something that could play against the film maker. Your absolute concepts of fair use don't jive with the unclear rules of fair use.

    There is no need for permission, and nothing to "bed" forgiveness for.

    "beg". Sort of sums up your points, when you would rather pick on a typo than deal with the idea.

    Congrats. Your post has been voted insightful by like minded people who have never dealt with copyright before in their real lives.

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