The copyright doctrine of fair use, which allows creators to re-use copyrighted material without permission in some circumstances, was the secret ingredient that made many SXSW docs possible. Indeed, the entertainment firm Donaldson & Callif handled fair use (among other things) on 15 films in the festival. Firm founder Michael Donaldson also led a tutorial at SXSW in how to make fair use your friend.
One of the most notable films to lean on fair use to get to the finish line was Janice Engel’s Raise Hell: The Life & Times of Molly Ivins, a richly documented, overwhelmingly from archival material, portrait of the legendary Texas journalist. “Molly had an extensive archive,” said co-producer Amber Howell, “so we had access but not rights.” The team licensed material where they wanted the high quality of a master, and sometimes—particularly for photographers—out of professional courtesy. But fair use was very helpful to lower costs for material they could use in the archive. It was also helpful in situations where they could not find the owner (what lawyers call an “orphan work”).
Alex Gibney’s The Inventor: Out for Blood in Silicon Valley, which launched on HBO microseconds after showing at SXSW, “could not have been made,” according to producers, without fair use. Gibney received insider material from a whistleblower, and he employed fair use to weave it into the film, to powerful effect.
Romance and music.
Another poster child for fair use was Romantic Comedy, Elizabeth Sankey’s loving, feminist essay about rom-coms through the years. The film is pretty much wall-to-wall clips from films and TV shows. Sankey told me she employed fair use for all of the film and TV clips, and also got errors and omissions insurance without difficulty.
And then there’s Brent Hodge’s Who Let the Dogs Out, a hilarious, improbable history of the evolution of the song—or is it a chant?—“Who let the dogs out.” Or, as producer Aly Kelly described to me, “an unnecessary deep dive on the world’s most annoying song.” The song has many fathers, all of whom eagerly claim paternity. The truth is more like the history of creative process in general—incremental, overlapping, and a combination of communication and misunderstanding. Who Let the Dogs Out makes understanding cultural production not only easy but fun. The producers licensed some works and fairly used others, depending on the context.