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.


Reader Comments (rss)

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  • This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Mar 15th, 2013 @ 11:15am

    How many times? -- MASHUPS are always trouble!

    This is yet again because they're using someone else's work. Problems are guaranteed!

    Now, all you've got here is the assertion that "fair use" should cover this. -- Irrelevant, because there's NO value in the mashups as such: all the value was made elsewhere.

    WITHOUT copyright, as you clearly want, EVERY little grifter would be outright stealing those values, not just leveraging it. And I sure as heck want the income flowing to those who actually create, NOT second-hand grifters.

     

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 11:28am

      Re: How many times? -- MASHUPS are always trouble!

      This guy!

      He has no concept of the amazing work done by mashup DJs.

       

      reply to this | link to this | view in chronology ]

    •  
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      John Fenderson (profile), Mar 15th, 2013 @ 11:31am

      Re: How many times? -- MASHUPS are always trouble!

      Now, all you've got here is the assertion that "fair use" should cover this. -- Irrelevant, because there's NO value in the mashups as such: all the value was made elsewhere.


      I don't understand your point here. Why is fair use irrelevant? It's incorrect to say all the value was made elsewhere (if that were true, the mashup would be without value as an independent entity, which is clearly untrue). But even if that's correct, what does that have to do with fair use?

       

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 11:32am

      Re: How many times? -- MASHUPS are always trouble!

      So you want to obliterate history, this is a documentary after all, not a mash up.

       

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 11:33am

      Re: How many times? -- MASHUPS are always trouble!

      I agree completely. Let the money go to the Creators, not these Grifters, like the RIAA, and MPAA, Well Spoken Sir. Thank You.

       

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 11:39am

      Re: How many times? -- MASHUPS are always trouble!

      You are stupid.

       

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    •  
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      That One Guy (profile), Mar 15th, 2013 @ 11:40am

      Re: How many times? -- MASHUPS are always trouble!

      You have no idea how culture actually works, do you?

      Intentional or not, knowing or not, everything is in some way shape or form derived, inspired, or based upon something someone else has done. If everyone had to start from scratch for everything, society as a whole flat out would not exist.

      Also, regarding your last line, 'And I sure as heck want the income flowing to those who actually create, NOT second-hand grifters.', how much of those thousands of dollars do you think will actually go to the creators, versus how much will end up in the pockets of whatever company happens to own the copyrights?

      As an example, out of the $8,800 listed for the two Peanuts entries (the second and third items on the first list), $0 of that will be going to the original artist, as he's dead and has been for over a decade.

      If you're going to hate 'second-hand grifters', they seem to fit the bill a lot more than people wishing to build upon the original artist's work to create something more.

       

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    •  
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      Robert Doyle (profile), Mar 15th, 2013 @ 11:44am

      Re: How many times? -- MASHUPS are always trouble!

      I think the value was $20.

      Backed.

       

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      •  
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        Robert Doyle (profile), Mar 15th, 2013 @ 11:46am

        Re: Re: How many times? -- MASHUPS are always trouble!

        Oh yeah, and thanks for sharing TD - looks great! (And TD gets no money for promoting this... how does that work? ;P )

         

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          Robert Doyle (profile), Mar 15th, 2013 @ 12:06pm

          Re: Re: Re: How many times? -- MASHUPS are always trouble!

          And one final piece... I don't care about the clips of the art - I care about the interviews... the clips aren't even the icing on the cake to me - they are the little plastic "Happy Birthday Pete" letters and add no value whatsoever, and certainly not the value they were originally intended to hold.

           

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 11:59am

      Re: How many times? -- MASHUPS are always trouble!

      Really?

      Did you paid Microsoft their royalties already since you are using their work without compensating the creators of that work to create shite on the interwebzx>

       

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    •  
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      Designerfx (profile), Mar 15th, 2013 @ 12:16pm

      Re: How many times? -- MASHUPS are always trouble!

      your complete and total failure to understand copyright is impressive. when do you go away?

       

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 12:38pm

      Re: How many times? -- MASHUPS are always trouble!

      "Now, all you've got here is the assertion that "fair use" should cover this. -- Irrelevant, because there's NO value in the mashups as such: all the value was made elsewhere."

      It's not a "mash-up", boy.
      Mash-ups take elements and mix them without context or explanation, rather like your so-called reasoning processes.

      This is a documentary, with a major part of it being new material done with the participation of the artists themselves.

      Since you're neither an artist, nor coherent, you don't see the difference.

       

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    •  
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      The Groove Tiger (profile), Mar 15th, 2013 @ 2:12pm

      Re: How many times? -- MASHUPS are always trouble!

      You're right, this documentary should have been 100% made without any third party content!

      Just like Moore's documentary about Flint, Michigan should have used a 100% original setting, not reused what others had made! Moore should have built his own car plant, even founded his own city so that he didn't have to mash-up a city that was created by others!

      Why stop there. I mean, he should have made his own vat-grown citizens, instead of just using existing people. But he should have made their DNA from scratch, like, scraping carbon cells from fruit or something then sewing them in strands. I mean, using existing people is just trouble, you can get sued!

       

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 3:34pm

      Re: How many times? -- MASHUPS are always trouble!

      Stop mischaracterizing it as stealing, it either makes you look stupid or dishonest. No one is entitled to a govt. established monopoly privilege, in fact, getting the government to enforce such a thing on me is stealing my rights in exchange for your privilege and stealing the taxpayer money required to enforce that privilege.

       

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      jupiterkansas (profile), Mar 15th, 2013 @ 4:14pm

      Re: How many times? -- MASHUPS are always trouble!

      So nobody should make a documentary about anything that happened in the 20th Century because all recorded footage of that century is under copyright?

      And don't say licensing is fine because it means you're asking permission to be critical of someone - it isn't going to happen.

       

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 5:33pm

      Re: How many times? -- MASHUPS are always trouble!

      Why should I take the moral opinion of someone who is either too stupid to know that copy'right' is not stealing or is dishonest enough to call it and conflate it with something it's not. When you call it stealing you are telling me that you are either stupid or dishonest which suggests to me that your moral opinion is worthless.

       

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 5:45pm

      Re: How many times? -- MASHUPS are always trouble!

      Grifters? You mean like people who derail the conversation and spout their nonsense on every page of a site built and run by someone else rather than trying to find his own audience of people who actually care what he has to say?

      Yeah it would be horrible if that was allowed to happen.

       

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      identicon
      Anonymous Coward, Mar 15th, 2013 @ 9:34pm

      Re: How many times? -- MASHUPS are always trouble!

      "WITHOUT copyright, as you clearly want, EVERY little grifter would be outright stealing those values"

      Your post is a very good reason, if not the best reason, I want IP laws abolished. This sentence right here. The only purpose IP laws should seek is to serve the public interest. That's it. If their intent is anything else they should be abolished. Using someone's work without permission is not stealing. Absolutely no one is entitled to a govt. established monopoly privilege and so making IP laws about preventing someone's work from being 'stolen' is a good reason to abolish them because now they are intended to do something other than serving a public interest.

      It's posts like this that make me more eager to have these laws abolished and that make me hate these laws. These laws are not intended to serve the public interest, they are intended to go against my interest. They are intended to protect someone's privileges to serve their interests, to prevent their work from being stolen. They are about the IP holder, not about the public, your post admits this. ABOLISH IP!!!!!!!!!!!!!!! I don't want to be subject to laws designed to go against my interests in the interests of others, especially big corporations that lobby for them.

       

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  •  
    identicon
    Anonymous Coward, Mar 15th, 2013 @ 11:17am

    So...roughly a third of their budget goes out to pay licensing fees (if they manage to get the full funding)?

    To me, that sounds a little bit insane.

     

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  •  
    identicon
    Anonymous Coward, Mar 15th, 2013 @ 11:35am

    However, this stupid problem has a simple solution.

    It's called do what you want and release via bit torrent, then flee to a sane country if someone comes after you.

    The efficacy of of such a strategy is well established.

    PS: Documentary != mashup.

     

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    halley (profile), Mar 15th, 2013 @ 11:42am

    Two thirds through the mashup movie, wherever it's most on-topic about the "old guard" vs the "new guard," the makers should just put up a black screen for about 15 seconds.

    "DUE TO A FEW SELFISH COPYRIGHT HOLDERS,
    WHO DEMAND UNREASONABLE PAYMENTS FROM THIS DOCUMENTARY,
    SEVERAL PROMINENT SOURCES HAVE BEEN REMOVED.

    Sometimes it's better for all concerned for us to
    just forget their 'contributions' to society."

     

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    •  
      identicon
      Anonymous Coward, Mar 15th, 2013 @ 12:41pm

      Re:

      It's not a bad idea, but don't do in in the film itself.
      Start promoting the film and include the list of nasties in the promo material.
      Let the fans do the rest!

       

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    Gwiz (profile), Mar 15th, 2013 @ 11:57am

    Odd One

    There is one on that list that struck me as a bit odd:

    "Newshour" via PBS

    Wouldn't that be something that we, the public, already paid for with taxes and donations?

     

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      John Fenderson (profile), Mar 15th, 2013 @ 12:49pm

      Re: Odd One

      Public (as in tax) money is a tiny portion of PBS funding -- around 10%. Everything else is private donations, mostly from individuals. I don't think that a company should be required to put their work in the public domain simply because they take private donations, and PBS has never promised they'd do any such thing.

       

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        identicon
        Anonymous Coward, Mar 15th, 2013 @ 3:38pm

        Re: Re: Odd One

        Those donating money to them should require their content be put in the public domain. It should be mentioned that they aren't doing so so that donors can make more informed decisions over whether or not they want to donate

         

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        Gwiz (profile), Mar 15th, 2013 @ 5:16pm

        Re: Re: Odd One

        Public (as in tax) money is a tiny portion of PBS funding -- around 10%. Everything else is private donations, mostly from individuals.


        I wasn't aware the percentage was that low. If asked I would have guessed around 50/50 myself.

        And I'm not really sure I think it should be required either. To be honest, I'd never really thought about that much. It just struck me as odd, that's all. They seem like one of least likely organizations to be demanding cash for using their film clips in a documentary.

         

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          identicon
          Anonymous Coward, Mar 16th, 2013 @ 9:31pm

          Re: Re: Re: Odd One

          The idiot far right conservatives, both politicians and pundits, have quite successfully spun a tale of how Public Television is leeching a huge amount of tax dollars from the American taxpayer; you're not the only person laboring under that mistaken belief. Ironically, the little bit of money (and it's actually less than 10% these days) PBS gets from the government is almost all used for PBS programming out in the least populated areas, to serve rural viewers... who mostly all live in the Red states. If they cut it the way they've been consistently threatening to for the past 20 years or more, the ones who will suffer the most will be the children of their own voters, who won't get to watch educational programming.

           

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    Beta (profile), Mar 15th, 2013 @ 11:59am

    bargaining positions

    It seems like bad planning to complete the film before acquiring the rights to the material. If they had discovered this problem before the editing, they'd be in a much better position to decide whether to include the 2% at all.

     

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      identicon
      Anonymous Coward, Mar 15th, 2013 @ 12:07pm

      Re: bargaining positions

      Perhaps some copyright holders wanted to see the film before deciding whether to license or not.

       

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        jupiterkansas (profile), Mar 15th, 2013 @ 4:10pm

        Re: Re: bargaining positions

        Which is exactly why we have fair use and no need to ask permission to use clips. It means you can never say anything bad about something and use their material to back it up. It means Jon Stewart could never show clips of anything he talks about. Imagine if he had to ask permission to make fun of Fox News.

        However the world evolved into the licensing of materials for documentaries it is destructive to art and culture and knowledge and free speech.

         

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    •  
      identicon
      Anonymous Coward, Mar 16th, 2013 @ 10:18pm

      Re: bargaining positions

      Your post doesn't make sense: how could they "plan"? They weren't filming a scripted drama; it's a documentary, and a documentary evolves and is fleshed out from the bare bones of an idea of what the documentary is going to be about. Making a documentary is about gathering information, by its very nature, a filmmaker can't plan everything out.

      And they didn't "discover the problem" -- surprise, surprise! -- after everything was filmed and the editing was completed. They had someone working to clear the rights to clips--most of which they got for free. There was no way to predict what clips would be free vs. what would cost them money (& how much it would cost) without doing that investigation. The only way to "plan" things out in advance of the editing would be to plan to not use any clips at all.

       

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    jupiterkansas (profile), Mar 15th, 2013 @ 12:22pm

    Once again I have to ask, if the movie is already paid for via Kickstarter, why are they concerned about who will show it or who will release it? Just put it online for free and rightfully claim fair use on all the clips.

    After all - the filmmakers have been paid, and Kickstarter donors are not seeking a return on their investment. Why play their stupid game?

     

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  •  
    identicon
    Anonymous Coward, Mar 15th, 2013 @ 12:55pm

    I'm an artist, and I support myself off of my work (though not as well as I could if copyright were shortened to five years). I'll admit I'm terrified that a big publisher will find out I made use of my fair use rights and included (gasp) quotes to support my ideas. Sigh... What a curse it is to live under this system. When I see fellow artists pirating without the slightest twinge of shame, that's a sign, you know?

    Did you happen to notice that researchers studying the brain can now reconstruct blurry images of things that people have seen? Fun questions: Do we own copyright on our no-longer-intangible memories or imaginations? If a person views artwork without paying for it and stores a copy in their brain cells, is that infringement? What if they digitalize their infringing thoughts and upload them to the internet? We'll be asking these questions in the next twenty years. I support a voluntary, industry led euthanansia program for thought infringement.

    Big Content doesn't realize it yet, but the copyright wars are pointless. It's like watching a triceratops fighting a t-rex, but there's this huge fireball coming down from the sky...

     

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      jupiterkansas (profile), Mar 15th, 2013 @ 1:13pm

      Re:

      The fireball has already hit. It's called the internet. They're fighting to keep the world just as it was before the catastrophe.

       

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    •  
      identicon
      Joe, Mar 30th, 2013 @ 1:41pm

      Re:

      I'm finishing a research paper on how the length of copyright has impacted artists. Please get in touch with me - I'd like to have an email interview with you for potential use in my paper. joegleason at gmail.

       

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    akp (profile), Mar 15th, 2013 @ 1:21pm

    MGM wants $16k for their clip. What. The. Fuck. The whole goddamn movie the clip is from probably isn't even worth that.

     

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    BentFranklin (profile), Mar 15th, 2013 @ 3:10pm

    At the end of the movie, just before they thank all the people who helped, they should give a list of all the people who refused to help and not thank them.

     

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      identicon
      Ash, Mar 16th, 2013 @ 7:15pm

      Re: Reward those willing to share?

      I think they should take the extra KickStarter money and share it with the people who agreed to include their stuff without payment. For those who wouldn't allow their content to be displayed without payment, they could self-censor "not available due to copyright restrictions by [organisation XYZ]". Positive reinforcement?

      I could imagine fans piecing together the missing bits, kind of like an easter egg hunt.

       

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    identicon
    Anonymous Coward, Mar 15th, 2013 @ 3:18pm

    Speaking of documentaries, ever seen "Debbie Does Dallas Uncovered"? I bought it yesterday for $2.00. A couple of things about it struck me as odd. For one thing, it implies that Bambi Woods disappeared after the first film. One guy even said a sequel was planned but Woods couldn't be found. WTF?! She appeared in both sequels.
    Another odd thing was one guy claiming to have tracked down her parents and had a telephone conversation with them. A few moments later it was stated that Bambi Woods' real name was unknown. Again, WTF?! How a person could supposedly track down her parents and talk to them on the phone without knowing her real name is never explained.

     

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    identicon
    Anonymous, Mar 17th, 2013 @ 8:16am

    Re-edit the film to eliminate all references to the cartoonists whose works are owned by jerk-ass money-grubbers. Or, explain how their works were unimportant historically.

    Remember, this documentary is going to determine whose work gets attention in the future. The jerks can be punished by being consigned to oblivion.

    Yeah, that's kind of a mean and Orwellian way to do it. They should do it anyway, rather than paying blackmail fees.

     

    reply to this | link to this | view in chronology ]


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