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 @ 11:07am

    The problem here is that the film maker sees only two alternatives, use without permission or pay, without considering the other options. Other options would have including contacting the rights holders to ask for "use rights with credit only", rather than payment, which is possible and does happen. Had she done this and found some not willing, she could have changed some of the clips in her documentary and moved along with it.

    I also think that this shows that fair use isn't a given in all cases. This is an example where individual clips may have passed the two prong test for fair use, but overall, a documentary that is nothing but these clips may be, as a whole, seen as something less than fair use.

    It would also be a major blow for documentary film markers if this movie was taken to court and found to not be fair use, and I think that this filmmaker chose to remove the clip rather than spending the money to find out if they are right or not.

    As other filmmakers have found, sometimes it would be better to ask first, rather than trying to bed forgiveness after the fact.

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