Digital Filmmaking

Clearances and Copyrights

May 4, 2009 May 4, 2009 My suggestion for new filmmakers is to take clearances and copyrights seriously and learn as much as possible before you even start your film. It could save you a lot of frustration and also from being sued! My experience about copyrights was through journalism school and mainly dealt with print and photos. I thought I knew enough about the subject to make my film. Turns out I actually knew very little. Clearances and copyrights are lot more involved than I first realized. They are complex enough for a full semester course in college. I found that a good way for me to start to become more knowledgeable about this subject is to read books on the topic. A good place to start to is, Clearance and Copyright: Everything the Independent Filmmaker Needs to Know, written by Michael Donaldson, a Los Angeles-based entertainment lawyer. This book has been used as a textbook in over 50 film schools and it has become the standard reference book for the industry. Donaldson has been fighting for independent filmmakers for over 30 years. He represents writers, producers and directors, and also serves as General Counsel to Film Independent (home of the Independent Spirit Awards and the Los Angeles Film Festival,) and the Writers Guild Foundation. In early 2007, Media Professional Insurance, with their top intellectual property lawyers, and the Stanford Law School Fair Use Project, all worked together to enable documentary filmmakers to insure against claims arising out of “fair use” of copyrighted material. Insurers and film distributors require producers to obtain permission for use of copyrighted material in a film. This can be expensive or in some cases impossible for new or independent filmmakers. The Fair Use Doctrine states that use for the purpose of criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright. Documentary films are an important source of education, commentary and criticism, but the rigid licenses or releases did not give filmmakers the flexibility to take advantage of ‘fair use’ in appropriate situation. The policy endorsement by Media Professional Insurance explicitly allows documentary filmmakers to rely on ‘fair use” without jeopardizing coverage. Creativity, critical analysis, and cultural critiques are often only possible when filmmakers can use copyrighted material.  Donaldson suggested the new initiative to Media Professional. He said, “Fair use has been accepted legally for more than a century, because free expression is one of our most important values. Creativity, critical analysis, and cultural critique are fostered, and sometimes only possible when filmmakers can use otherwise copyright material. We’re not pushing the envelope legally—fair use is always limited and provides protection for copyright holders.” Some examples of documentaries that have used copyrighted material as a crucial cinematic tool are as follows: “This Film Is Not Yet Rated,” a critique of the MPAA movie rating system. “Smoke and Mirrors: A History of Denial,” a look at the tobacco industry and health risks. “Who Killed the Electric Car?” which examined industry opposition to electric cars. The filmmakers of these documentaries created a historical narrative that criticized powerful interests, who were unlikely to give permission for the use of copyrighted excerpts.  Without the clips, these documentaries would have been less effective or would not have been made.