Going into the fifth year after the publishing of Filmmakers' Statement of Best Practices in Fair Use, filmmakers are beginning to be each other's teachers. On a recent trip to New York, I had the pleasure of dining with Katy Chevigny, executive director of Arts Engine. Along with making splendid films, Arts Engine runs the Media That Matters film festival.
Katy Chevigny is a "born again" fair user, she says. She also teaches about fair use, both at the IFP Rough Cut Lab and with Arts Engine's Media That Matters filmmakers. She tells a compare-and-contrast story that's worth sharing.
"When I made Deadline [a film on the death penalty], I was not yet educated in fair us and I was at the mercy of what lawyers told me--both broadcast and archive lawyers. I'm still really angry, and I have a never-again philosophy about it. An enormous part of our budget went to archival, even though ten percent or less was archival. We spent about $75,000 on clearances on a low budget film, in which the filmmakers only made $30,000.
"Election Day [a snapshot of voting across class and the country in 2004] also used a lot of news footage and archival and we didn't pay a dime.
"One of the tragedies of Deadline, in addition to paying inordinate sums and not negotiating, was that we lost a precious moment that is no longer in the film. To handle all these clearances we really didn't need to do, we also had to hire an archival clearance person. The woman told us that the first thing we had to do is to lose the Walter Kronkite footage we had. We were comparing the situation today with a decision on death penalty made in 1972. To transition back to 1972 we cut to Walter Kronkite-the iconic voice of news at the time. He announces soberly, in his classic way, that the death penalty is now illegal in the US. The clip situates the viewer back in that era, it tells the story crisply and authoritatively. We told the archival clearance person, we'll pay for it. She said, 'No, Walter Kronkite has a rule that he doesn't let his image be used.' Later we found that he's a nice guy and probably would have let us, but his handlers stop everything from getting to him. So we can't even get this footage from CBS, because Kronkite is involved. [If you license material, you inherit the contractual agreements that the copyright holder has with, for instance, celebrities. If you fair use the material, these contracts don't travel with the material.] Even so, we call Kronkite's people, and of course they say no, and they don't even want to know what the film is about. We replace him with an image of an NBC guy who nobody knows, who rambles and doesn't have the definitive soundbite. It's much less effective, and we had to pay a lot of money for it. If I could do it again, that piece of Walter Kronkite would have been in the movie, and we would have had a rock solid case for fair use in case he came after us, which I don't think he would have. That clip is still not in the film, and I still mind it.
"That's what happens if you don't know what you can do. Then you do something that's less effective, more expensive, and you feel like crap about it.
"Then with Election Day, I was armed with the Documentary Filmmakers' Statement, and knew my rights. In that film, we have a scene in a barbershop in Harlem, and on the TV they're showing people with Puff Daddy (PD), wearing the Vote or Die T shirt. It was a historic image. Tons of people have asked me, 'How did you clear the image of PD?' Well, I didn't clear it, and I didn't need to. Our characters were watching it. [Check out the third category in the Doc Filmmakers' Statement.] At the end of the film, we created a montage of all the characters we had been following watching the TV. They were all watching different channels-some of them ABC, some Fox, some Jon Stewart. That diversity alone was a statement about the media in our time. If I had had to clear it, I would only have been able to pay for one. The only way we could do it was by fair using it. If I hadn't had my fair use conversion experience what would I have done in Election Day? We would have lost some of the texture of what was happening, which would be important to people 30 years from now.
"So it went to the public TV series POV -bless Simon Kilmurry [the executive director of POV and an early and active endorser of the fair use Statement]--and nobody sued me.
"I try to let people know that employing fair use like this is not some semi-illegal thing, where you hope you can 'get away' with it. We need it to do our work; it's not a favor, it's a right. And the more we use it, the more we can use it. So you need to do it out in the open, with pride."
Do you have a born-again fair use story? Please share it at firstname.lastname@example.org, and we'll pass it along!