Fair Use Success Stories: Going Clear

Alex Gibney’s Sundance hit Going Clear [2] takes on Scientology, revealing surveillance, abuse, and using confessionally-obtained information to threaten members who might be considering leaving the fold. It translates Lawrence Wright’s book, Going Clear [2] into televisual form, is slated for HBO, and...it couldn’t have been made without fair use.

Gibney said, elaborating on an interview with John Horn [3], that fair use was the key to overcoming Scientology’s pull on the major networks, whose news and public affairs footage, as well as film clips, were essential to telling the story visually. “We weren’t able to license Scientology-related material from the big networks — our networks, American networks,” he said. “We had to ‘fair use’ it--sometimes with the networks' encouragement--because they all felt it was too legally difficult for us to license that material, which I found astounding since I’ve licensed all sorts of material from the networks for many, many, many years. This one thing — Scientology — seems to be the red button.”

Gibney used fair use to overcome what is called private censorship, the ability of private parties to muffle expression using copyright law, either by threatening litigation or withholding copyrighted information. Fair use permits creators of new cultural expression to re-use copyrighted material without permission or payment, if their use is “transformative”—they are adding value to the culture by doing something different with the material than the purpose for which it’s on the market, or the purpose adds more to the public good than it costs in private damage, and the useage is an appropriate amount. If fair use didn’t exist, then copyright holders—and the entities that intimidate them--could stifle expression.

Gibney has been not only a responsible and consistent fair user in his films but has quietly been a voice for reasonable employment of fair use among his fellow filmmakers.

“People should remember that the Copyright Act would be unconstitutional without fair use,” he said.  “Properly used, fair use should be embraced by everyone, filmmakers, authors and copyright holders alike.”