At Realscreen, the annual scrimmage where aspiring producers of non-fiction television, cable programmers and vendors mix (as usual, in Washington DC), the panel on fair use was titled for conflict: “The New fair Use Battleground: Resetting the Ground Rules.” The panel, funded by the Association of Commercial Stock Image Licensors, explored the premise that fair use is wounding the business of archives, including the many footage houses that hand out thumb drives and water bottles at Realscreen.
Fortunately for all (except those showing up for the drama), the conflict turned out to be a false alarm. Moderator Matt White, a veteran archivist himself and head of the public broadcasting experiment American Archive, talked about a shifting relationship between filmmaker and archivist, from collaboration to mutual suspicion. HBO Archives’ Max Segal expressed “concern” that filmmakers employing fair use might hurt the business of archives. But when Boston public broadcaster WGBH’s lawyer Jay Fialkov and Los Angeles entertainment lawyer Michael Donaldson talked about filmmakers’ experience of fair use, there seemed to be little danger to archivists.
Fialkov spoke of copyright as a policy that protects culture, both by providing a limited monopoly to creators and by offering ways for new creators to access existing culture. He noted that WGBH is both a copyright holder and a user of copyright exemptions such as fair use. He showed a clip from Citizen King, Orlando Bagwell’s biography of Martin Luther King, Jr., in which WGBH proudly employed fair use to quote the “I Have a Dream” speech. (The King estate zealously guards its copyright in the text of the speech.) “I usually try to avoid lawsuits,” he said, “but this was a rare case where I thought, if they want to, bring it on.” There was no challenge, of course.
Donaldson dramatically showed what a difference fair use could mean for the budget of a film, and how rapidly fair use had become normal in the business, since the 2005 creation of the Documentary Filmmakers’ Statement of Best Practices in Fair Use (which Donaldson helped to create). At Sundance 2005 (before the creation of the Code), he noted, not a single one of the films he worked on employed a single fair use. At Sundance 2011, the record was dramatically different:
Not only were filmmakers lowering their clearance costs. They were also making kinds of films that might otherwise never have been made. Jennifer Newsom’s Miss Representation, made as a personal project on a shoestring, employed fair use nearly 700 times, while making an argument about how women’s bodies are portrayed in media. Paul Mariano’s These Amazing Shadows, a reflection on the cultural significance of the films in the National Film Registry, sampled movie history under fair use more than 300 times. Neither of these films employed fair use on the typical holdings of footage houses; rather, they critically analyzed examples of popular culture usually guarded by large media companies and, without fair use, encumbered by a thicket of accompanying contracts and union arrangements.
Donaldson also showed how large media companies are employing fair use and the option to employ it, to lower clearance costs. A four-part Fox TV series cut its clearance costs by 2/3—again, all material owned by other media companies—and CBS brought its clearance costs down from a possible $250,000 to a mere $16,000, with Donaldson’s help.
“This isn’t a threat to archives,” Donaldson said. “The kind of fair uses employed rarely deal with their collections.” Frequently footage houses have unique holdings, which would require users to go to them in any case for high-quality material.
The panel exposed, for me, the need for more extensive conversations in the field about the implications of fair use. The conversations need to be driven by knowledge, not fear.