Fair Use and Best Practices: …

     Fair Use and Best Practices:
                                                                                                    been able to justify fair use using the
                                                                                                    Statement. Partly as a result of their
                                                                                                    Sundance showcasing, all three received

          Surprising Success                                                                        television screenings from entities that
                                                                                                    approved their fair uses of major parts of
                                                                                                    the films. Hip Hop was picked up by
                                                   actors quickly cleared a path that many          PBS/ITVS "Independent Lens"; This Film
BY PAT AUFDERHEIDE AND PETER JASZI
                                                   others followed.                                 went to the IFC cable channel, which went
Pat Aufderheide is Professor in the School of          Taking advantage of the recent trend         so far as to write its own internal fair use
Communication at American University and           toward "transformativeness" analysis in the      policy; and Hunt went to HBO.
Director of the Center for Social Media            courts,3 the Statement clarifies when it is          Filmmakers have also used the
there. She is the author most recently of          safe for a filmmaker to assert fair use,         Statement in order to conduct reasoned
Documentary Film: A Very Short                     focusing on four typical situations for film-    negotiations that lower clearance costs.
Introduction (Oxford University Press,             makers: quoting media in order to critique       IFC's Wanderlust, a film about road movies,
2007), and the recipient most recently of the      or analyze it; quoting media to make a point     licensed clips from several studios and
International Documentary Association's            about the culture; incorporation of copy-        used the Statement to lower its costs by
Career Achievement in Scholarship Award            righted works in the process of filming          hundreds of thousands of dollars.
(2006).                                            something else; and quoting to make a his-           Television programmers increasingly
                                                   torical point. (These four cases do not, of      turn to the Statement. U.S. public television
Peter Jaszi is a Professor at the Washington       course, exhaust fair use, as the Statement       has broadly incorporated the Statement.
College of Law, American University, and           makes clear, but they cover the great major-     Independent Television Service (ITVS),
Co-Director of the Program on Information          ity of issues that arise for documentary         which co-produces dozens of television
Justice and Intellectual Property there. He        filmmakers.) The Statement resulted from a       programs a year, endorses it. Producers at
also directs the Glushko-Samuelson                 year-long process of small-group delibera-       WGBH, one of the largest producers in U.S.
Intellectual Property Clinic. A Trustee of the     tions among members of five national film-       public TV, give it out to their producers,
Copyright Society and co-author of a stan-         maker organizations.                             and use it themselves. Public Broadcasting
dard textbook on the subject, he recently              The theory behind Statement is that          Service (PBS) has shared it with all general
received the American Library Association's        courts respect the views of responsible pro-     counsels and general managers in its net-
L. Ray Patterson Copyright Award.                  fessionals about what kinds of uses are fair     work. On a case-by-case basis, other cable
                                                   in their area of practice.4 [FN here to on-      companies, including HBO, Discovery
                                                   line version of my article].. In practice, the


T
    he viability of fair use--legitimate,                                                           Times and the Sundance Channel, have
                                                   clarification offered by the Statement has       accepted fair use claims grounded in the
    unauthorized use of copyrighted mater-         made it possible for filmmakers to dramati-
    ial under certain circumstances--has                                                            Statement.
                                                   cally lower clearance costs while also hon-          Professionals have found the Statement
come into question, both with aggressive           oring copyright ownership, which
policing of copyright by large media hold-                                                          valuable. The legal community has publicly
                                                   filmmakers as copyright holders hold in          recognized the Statement at The Copyright
ers and with changing digital practices.           understandably high regard.
And yet fair use is arguably the most impor-                                                        Society of the U.S.A., the leading associa-
                                                       "Success has many mothers," said             tion of copyright attorneys, which has show-
tant feature that maintains copyright law's        Michael Donaldson, Esq., of the Los
constitutionality; without flexible, useable                                                        cased fair use and the Statement at regional
                                                   Angeles Firm of Donaldson and Hart, and a        and national meetings. The University Film
exemptions to copyright ownership rights,          member of the project's legal advisory
the Supreme Court has held, copyright law                                                           and Video Association, the leading associa-
                                                   board. "You can now see many organiza-           tion of film and video teachers in higher
could clash with the First Amendment.1             tions building it into their process, and
   The creation of the Documentary                                                                  education, has endorsed it and teachers in
                                                   starting their own projects depending on         the UFVA's Fair Use Working Group have
Filmmakers' Statement of Best Practices in         it." He pointed, among other things, to          developed boilerplate teaching language.
Fair Use 2 demonstrates that in fact fair use      Stanford University's Fair Use Project,              Online video organizations have found it
is a vital and functional part of copyright        which defends filmmakers so long as their        useful. Joost has endorsed the Statement,
law, when its terms are well-understood by         fair uses accord with the Statement.             and Revver.com links to the Statement on
a particular creative community. Released              Filmmakers, who want access to televi-       its copyright page for uploaders.
in November 2005, it has already changed           sion and theaters (that would be most of             Errors and omissions insurance may
industry practice to the point that all major      them) need for gatekeepers to agree to their     well be the best gauge of the adoption of
insurers of documentary film now routinely         claims. The Statement almost immediately         fair use in general, and the Statement in
accept fair use claims that a lawyer asserts       made that possible, and more and more            particular, since insurance companies are
are backed by the Statement.                       gatekeepers are turning to it. Only eight        both the ultimate gatekeepers for television
   As facilitators and coordinators of the         weeks after release of the Statement, three      documentary and also historically cautious
Statement, we were frankly surprised by the        films (Hip Hop: Beyond Beats and Rhymes,         to adopt practices that involve risk. And
rapidity of the change. We anticipated a           This Film Is Not Yet Rated, and The Trials of    since fair use is a right, which can be chal-
slow process of adoption; we have instead          Darryl Hunt ) went to the Sundance Film          lenged as well as asserted, insurance com-
watched as more venturesome marketplace            Festival--a make-or-break place for the          panies have typically only accepted fair use
                                                   documentary market--because they had

                                                 INTELLECTUAL PROPERTY TODAY        OCTOBER, 2007                                               a
claims with considerable negotiation, on a        the Statement's release is willing to make
case by case basis, and have much more            that explicit: "In light of recent develop-
routinely insisted that rights be licensed.       ments in the industry," he noted, "we have
    The four companies most used by U.S.          added a fair use endorsement to our media
documentary filmmakers--AIG, MediaPro,            product library."
ChubbPro, and OneBeacon--all announ-                  Insurers do not have standard pricing.
ced programs to cover fair use claims             Insurance policies are each negotiated
between January and May of 2007. They             individually, and filmmakers sometimes try
first became aware of this issue for docu-        several companies to find out which offers
mentary filmmakers through meetings in            the best arrangement.
autumn 2006, coordinated by American                  "I'm really pleased that documentary
University law professor Peter Jaszi, P  .O.V.    filmmakers now have this insurance
executive director Simon Kilmurry, and            option," said Kozee. "It's still important for
insurance broker Debra Kozee. Soon after,         filmmakers to recognize that getting the best
Kozee tested the waters with Byron Hurt's         insurance policy still requires negotiation."
Beyond Beats and Rhymes, which has                    The Documentary Filmmakers' State-
extensive quotation from hip hop video and        ment of Best Practices in Fair Use has had
music. She found several insurance compa-         a profound effect on the documentary mar-
nies newly interested, with all requiring a       ketplace, still shy of its two-year mark--all
legal letter of opinion about fair use. The       without jeopardizing the strength of copy-
Statement made such a letter of opinion far       right ownership, if filmmakers continue to
easier to write than ever before. Jaszi com-      use it and tell others about its effectiveness.
plied, and Hurt's film was insured by AIG.        Furthermore, the example is being emu-
    "I think AIG was more aware earlier of        lated by other creative communities. Media
the value of the Statement because of New         literacy teachers, who need to quote copy-
York geography," Kozee recalled with a            righted material to teach, are now working
smile. "I bumped into their rep all the time      on a similar statement of best practices. As
because our offices were around the corner        well, discussions are underway with film
from each other."                                 scholars, art teachers, and dance profes-
    AIG quietly began offering coverage           sionals.
based on the precedent set by Hurt's film.
MediaPro was the first to make public its         ENDNOTES
acceptance of fair use claims, at the             1. (1) See Eldred v. Ashcroft, 537 U.S. 186, 219-20
International Documentary Association's              (2003).
26th Annual Celebration of Academy Award          2. Available at http://www.centerforsocialmedia.org/
Nominees in February 2007. Soon                      resources/publications/statement_of_best_
                                                     practices_in_fair_use/.
ChubbPro also announced its willingness to
                                                  3. (2) See generally Bill Graham Archives, LLC v.
insure fair use claims with proper opinion
                                                     Dorling Kindersley Ltd., 386 F. Supp. 2d 324
letters, and OneBeacon followed in April.            (S.D.N.Y 2005).
    MediaPro made a special arrangement           4. See Peter Jaszi, "Motion Pictures and Copyright
with Hollywood attorneys and with the                Discipline," forthcoming in the Utah Law Review,
Stanford University's Fair Use Project. If           and the Oxford Handbook of Film and Media
the Fair Use Project agrees to defend a film-        Studies, and available at http://www.centerforsocial
                                                     media.org/files/pdf/fairuse_motionpictures.pdf
maker in case of lawsuit pro bono, or if sev-
eral Hollywood attorneys including
Michael Donaldson agree to defend the
filmmaker for reduced fees--both deci-
sions dependent on the filmmaker comply-
ing      with    the     terms      of     the
Statement--MediaPro agrees to pay legal
costs if the defense fails. MediaPro also
requires a complete shotlist.
    Other companies follow AIG in simply
requiring a legal letter of opinion.
ChubbPro's Ken Goldstein, worldwide
media liability manager for Chubb
Specialty Insurance, noted that in the past
ChubbPro had been willing, in principle, to
consider insuring a fair use claim, but since


b                                                INTELLECTUAL PROPERTY TODAY             OCTOBER, 2007