On the heels of the recent fair use discussion, a friend emailed me some links to On the Media, an NPR program that featured James Boyle of Duke University Law School, which recently released a resource for filmmakers, Bound by Law?, and Hugh Hansen from Fordham University to talk about fair use and documentary filmmaking. The discussion was framed by Amy Sewell who made Mad Hot Ballroom, a film with a significant amount of copyrighted material in it.

Sewell lawyers were either not versed in fair use or deliberatly chose to advise her against utilizing it, so a story about a cell phone ring in her film is kind of indicative of the ridiculousness that has claimed doc filmmaking:

One of them was in a scene where a little boy from Bensonhurst, Michael, and his mother are walking down the street. And during this scene, which is just being shot as is, normal daily life, his mother’s cell phone rings, and the tune is “Gonna Make You Fly” from the hit movie, “Rocky”, and she answers her phone. It was six seconds. With every song you have to clear two sides to the music. One is the master, which Sprint owned, and they gave us permission to use it for free. But then you also have to clear the publishing rights, and that side was owned by EMI. And I think they start at around 10,000 dollars for those six seconds. And we kept negotiating them down, and eventually we ended up getting it for 2500. (Go to full transcript>>)

A lawyer versed in fair use, such as Boyle, knows that this is classic. In his portion of the interview, he says he’d fail a law student that got this answer wrong on a test. So, if you’ve read AJ Schnack’s and my discussion, or other discussions like this, you know that this is representative of industry practice, not actual law, and that industry practice is a result of lawyers and insurers being very conservative and filmmakers being too afraid to stand up for themselves.

Boyle and Hansen talk a bit about wanting test cases, and certainly a lot of people would feel more comfortable having rules (as AJ said). But case law requires someone willing to push the envelope and be the guinea pig, and that’s not a spot that filmmakers want to put themselves in. They just want to make movies. So I diverge from Boyle and Hansen’s discussion on this point, but they go on to talk about the need for education.

Boyle: But I think you have to also work on the other end, the pre-production end, because there’s another problem here, which is an increasing unwillingness of filmmakers ever to get this kind of material into their viewfinders in the first place — a remarkable state of ignorance about what the law permits, just incredible situations where people were telling me well, ‘Of course, I know I’m not allowed to show the logo on people’s hats when I’m filming them.’ And this makes any intellectual property lawyer just kind of like roll his eyes and go, ‘What are you talking about? Of course you are.’ (Go to full transcript>>)

Ah yes, the mythology of trademarks. The level of ignorance of communications law by filmmakers has given rise to a mythology around all things legal. There might be reasons for not allowing a logo to be seen in a film, but copyright infringement is not one of them in most cases. Nor is there a time limit on the amount of music you can use that would be considered fair use (8 bars, 6 seconds, I’ve heard it all!).

You can get a lot of free information on communication law for free. I’m giving you resources left and right, there is a ton at the Center for Social Media and the Duke Law page, and a quick internet search will bring up contracts and free articles of all sorts. You can join professional organizations like International Documentary Association and take part in their producers information series, or you can even join free networking groups like D-Word and Doculink, where other members will draw on their experience to help answer your questions. Or if you are willing to invest in $5000 Mac or $3000 DV camera, go ahead and buy a $15 copy of Michael Donaldson’s book, Clearance & Copyright, and separate fact from fiction!

I recognize that this probably feels like information overload, but it is part of the profession of being a documentary filmmaker – they wear a lot of hats, and one of them is amateur lawyer, at least until they get enough money in the budget to hire someone.