This interview is cross-posted from the Disruptive Competition (DisCo) blog. DisCo is a project by
the Computer & Communications Industry Association to promote disruptive innovation and competition to policymakers.
“Life Itself,” Kartemquin Films’ highly-acclaimed documentary about the late movie critic Roger Ebert, debuts in theaters this July 4 weekend, and it’ll contain clips from Ingmar Bergman’s movie “The Silence,” Martin Scorsese’s “Who’s That Knocking At My Door,” and Russ Meyer’s “Beyond the Valley of the Dolls.”
Thanks in part to an ongoing campaign undertaken by Kartemquin Films’ Co-Founder and one of “Life Itself”’s Executive Producers Gordon Quinn, the documentarians didn’t have to license all of the clips.
“Life Itself,” and several other documentaries, such as “The Trials of Muhammad Ali,” would not have been possible without the filmmakers being able to rely on the legal concept of fair use, because licensing footage and archival materials would have been prohibitively expensive, Quinn said in a recent interview.
In 2004 and 2005, Quinn and a group of his peers, working alongside industry lawyers and academics, produced a 10-page guide entitled: “Documentary Filmmakers’ Statement of Best Practices in Fair Use.”
The project came about after an animated 2004 conversation between American University’s Professor of Communications Patricia Aufderheide and Quinn in Amsterdam as they were attending the International Documentary Festival. The professor told Quinn that documentarians didn’t have to live in a “clearance culture,” and that he and his colleagues ought to reset the expectations about fair use and licensing by creating industry standards, educating industry players and asserting their rights.
Quinn agreed to participate in the project with Aufderheide and American University’s Intellectual Property Law Professor Peter Jaszi and others on the project, which basically lays out four kinds of situations where documentary makers can make strong claims that the inclusion of a work amounts to fair use (and therefore doesn’t need to be licensed from another entity.) Broadly, the four categories are when a non-fiction film critiques a work, quotes it, incidentally captures it in the background as part of a scene, or provides short clips of material to give viewers some historical context for the story.
Prior to the creation of the statement, companies providing documentary makers and distributors with errors and omissions insurance required all third-party material with rights associated with it to be cleared and licensed. (The insurance protects filmmakers financially against lawsuits in which they’re sued for a variety of reasons, including defamation claims, among other things.) In the wake of the issuance of the statement, four of the major insurance companies eventually started to accept many the fair use claims of documentary makers based on letters authored by lawyers that were hired to vet the claims (Aufderheide details further impacts of the statement in this International Documentary Association blog post.) A 12-page legal primer on the third-party content appearing in “Life Itself,” for example, outlines why the various clips from other films and media constitute fair uses of third party content.
At 72 years old, Quinn is a veteran documentary-maker, having completed his first film “Home for Life” in 1966. Since then, he’s made and executive produced dozens of documentaries, the most famous of which is probably “Hoop Dreams,” which was released in 1994 and nominated for an Academy Award. The film followed the lives of two African-American high-school students in Chicago, and their attempts to become professional basketball players.
Nevertheless, despite the best-practices statement, decisions about what documentary-makers should license, and what they can claim fair use on isn’t always crystal clear. Below, Quinn discusses some of the decisions that Kartemquin’s made in its almost 50-years of existence, and how he navigated the hurdles over his career.
Q: On your bio, it says that you were one of the leaders in creating this statement of best practices in fair use. How did you get involved with that?
A: The truth is that we’ve been making films for almost 50 years. In 2016, it’ll be 50 years, and we used fair use quite extensively in those early days and get our films broadcast. It was kind of a “Don’t Ask, Don’t Tell” situation, and most of our work went on public television. We kind of had a vague understanding about it, but I can’t say that we had as sophisticated an understanding of it as today.
Then, very gradually, or not so gradually, actually, we lost the right to use it. By the time we did “Hoop Dreams,” which was 20 years ago, we were licensing things that were clearly fair use.
It was quite clear to us that we weren’t going to get the E&O insurance, we weren’t going to be able to get it broadcast, and theatrical distributors wouldn’t deal with it unless we had literally everything cleared.
Two examples in that film that drove me crazy, but where in the end I had to cave in was when the family sings Arthur ‘Happy Birthday.’ We had to license ‘Happy Birthday.’ It was just absurd.
And then there’s another scene where we’re interviewing William’s mother, and she’s waiting in the hospital when he’s having knee surgery. His whole career’s on the line, and there’s Muzak in the background that we couldn’t get turned off, so we had to license that.
We had lost our fair use rights. Well, the whole field had, and from then on, we were licensing things. We were caught up in what Peter Jaszi and Pat Aufderheide call the clearance culture. And I got involved in the beginning. I remember walking in the drizzle in Amsterdam, and Pat Aufderheide lays it out for me: “You guys can win this back. You don’t need to be a victim this way.” What she meant that was that we didn’t have to go to the Congress or the courts. We didn’t have to lobby anyone and try to get the law changed, which is what I’ve done before. We just have to stand up as a community for our rights. I was like “Wow, I’m on board.”
Once they did their research to show what the problem was, they published some documents about that. Pat Aufderheide and Peter Jaszi published some research. Once they did that, they started to have meetings with our field across the country.
We hosted two of them in Chicago at Kartemquin. At each meeting we had 20 to 25 people there. One was for documentary filmmakers and the other was for organizations and people around Chicago for the exhibition of films.
In a sense what’s interesting about it is it’s kind of a model in which academics can play a very positive role in Democratic society, because they identified a problem, they talked to the group of people who were suffering under the problem, and they said: “Here’s something you can do to address this problem.”
Q: I’m not clear on how making a statement as a community helped things.
A: What it took was for a couple of years of constant campaigning, and meetings and re-educating everybody about the issue of fair use.
So after we published the statement we spoke at conferences, like the University Film and Video Association, because everyone was teaching it wrong. They were saying things like: There is no such thing as fair use. You have to clear everything in a film, and that’s the way to be a professional. We had to speak with broadcasters. We began with public television, but we also spoke with the other broadcasters, and said: “Look, you’ve got it wrong, and your lawyers have got it wrong,” and we had to also spend a lot of time talking to lawyers and speaking to conferences of lawyers.
It was a struggle to educate not only the public, but all of the people who we deal with, all of the people who you’d call the gatekeepers.
So little by little, we would convince the people that we worked with. The breakthrough with the insurance companies was a really big one, and there were some behind-the-scenes, private meetings until one of the insurance companies came forward and said: “We are ready to insure your fair use claims.”
Once they did that, the rest of the insurance companies followed suit.
In “Refrigerator Mothers,” there’s some music that’s composed music that was composed by one of the women who appears in the film, the sister of one of the children. It was wonderful, and just one of those moments that was a happy marriage. There was also some music in the fair use clips. We used music from some of the Hollywood feature films. We used clips from some other things, and there was music that was part of those clips.
So we have music that we fair-used, and then at the beginning of the film, we used John Lennon’s song ‘Mother.” It introduces and takes us into the film. We’re using it as music. We’re using it because he made a song about his mother, and we’re making a film about mothers. It is not fair use, even by a stretch. There are stronger claims, and weaker claims.
[At the time,] I said to the producer, who is a force of nature, and has a son on the autistic spectrum: “We can’t use this. It would be enormously expensive.” And J.J. [Hanley] is a force of nature, and she actually did get through to Yoko Ono, and Yoko Ono looked at the film, and initially, I couldn’t remember, she was going to license it to us for $15,000. It would have been five or 10 times that normally. Then we had to go back to her because we had a most-favored-nation clause [for more on what that means, click here] and said you know, we can’t pay 15, we need to re-negotiate it. A fax came in and said: “Mrs. Lennon wants you to have the song regardless of what you’re going to pay.”
Q: But why wasn’t it fair use? You didn’t use the whole thing.
A: We didn’t use the whole thing, but we weren’t transforming it. We weren’t commenting on it. We weren’t critiquing it. We weren’t even using it as a cultural critique of the times, or anything. We didn’t capture it inadvertently. We were using it for the very ethos and feeling that the song evokes when John Lennon wrote it, and how it made people feel, so it wasn’t fair use, and it was a pretty long clip.
It’s also important to understand that we’re rights holders. So we don’t want our work used in ways where we feel that we’re being ripped off. We’re also rights users, so it’s really all about finding the right balance.
I always say to people: There’s no reason not to approach an artist directly, and let them know what you’re doing, and see if they’ll respond to you.
So here’s an example of that, again from “Refrigerator Mothers.” We licensed a sequence from “Puff the Magic Dragon” [from Peter Yarrow] but he gave it to us for nothing — we didn’t pay anything.
There’s a song, and an animated sequence. The clip meets the fair use requirements. It’s in a scene that we’re filming. We did not make the decision to include it in the movie. The autistic man, his mother asks him what he wants to listen to, and he points to the “Puff” DVD. It’s an incredible sequence. It’s incredible in the way that it resonates – the animated story told, it IS the story of the character that we’re looking at. It’s a very emotional scene. And it’s a very long, two-and-a-half-minute sequence. I think I remember showing the sequence to the roomful of copyright lawyers, and I think they were pretty divided. About half of them thought it was fair use, and the other half thought it was not fair use.
I approached Yarrow. I kind of knew him, and respected his work. But when I approached his people, they said “Nope. Nobody ever licenses it because everybody thinks it’s about dope, and that he didn’t write a children’s song, and he’s pissed off about it, and he doesn’t license it to anybody.” Finally, I got to him, and said: “Peter, I’m going to send you the sequence, just look at the sequence. All I ask is for you to look at the sequence.” He looked at it, and said: “Oh yeah, you can have it.”
I thought it was legitimate fair use, but I’m happy to reach out to an artist, and let him see how we’re using his work, and see if I can get him on board.
Q: You were telling me that licensing culture grew through the years. Can you tell me more about that?
A: I think two things drove it. I think big rights holders, Sony and Disney and the big archives, as rights began to get consolidated in bigger and bigger companies, they came to see it as an income stream. We started getting these cease and desist letters from Sony and other people that were very threatening. And if you’re an individual, you’re a small organization, you think “God, I can’t go to court against Sony.” So people start backing down.
So if you look at the standards and practices bibles from the broadcasters from the Nineties, what you will find is things like the 30-second rule. In the news context, you can use 30 seconds of something and no more.
Well there is no 30-seconds rule. The law doesn’t lay out anything that you can get to the 30 second rule. Thirty seconds may not be long enough for you to get to your point. Thirty seconds may be too long for the way in which you’re using it. All this started to happen, and people just started accepting it.
People just thought that they had to live with it even though they never sued anybody. If you look back, they had smart lawyers. They didn’t sue because they might lose in court and set a very bad precedent for themselves, but they got their way anyway just by being very threatening.
Q: Did you ever receive C&D letters before?
A: I think the first ones that we got were in the early 80s, and around the time that The Last Pullman Car was broadcast.
Q: So did you receive these letters after you’d already completed the documentary?
A: Yeah, because at that time, we didn’t have a Web site. Nobody knew what we were doing. If I remember right, the letters we received came after the broadcast.
Q: And how did you deal with that?
A: We just said “F*** You,” and we didn’t respond. Just talking to you reminds me of an image of myself reading it and throwing it away in a garbage can as a romantic gesture. I should have put it in a file. We just kept doing what we were doing.
Now later, by the time we did Hoop Dreams, we started it out on our own, and then KTCA, the Minneapolis station, gets involved. So when they’re involved, you have to sign a contract that says that you have all the releases and the clearances.
We used to get to the near the finish of a film with picture lock and the insurance company would look at it and point out where we need to get clearances. What we do now, and what we got the E&O insurance companies to respond to is, we get a letter from a lawyer who understands fair use, and they look at everything that we claim fair use on, and tells the E&O insurance company in legal language why its fair use, and that becomes part of the file.
I’ve made some mistakes over the years. In “Terra Incognita,” our film about stem cell research, there’s a sequence about the bill going through Congress, and we’re using all this news footage, and there are montages of different things, and there are people talking over it. It’s all fair use, and in the middle of that, there’s a shot of the Capitol, and there’s our narration over it, and Peter [Jaszi] said: “Why is that fair use?” Why is that in there?’ and it was like, he has us.
We’d lifted it from one of the stories, but it was there not as part of the news story, it was there because we needed a shot of the Capitol. It was obviously something that was easy to replace, not a hard shot to get. I had it in our archives. It was something that was easy to miss, and I’d seen this sequence a million times, but hadn’t quite caught it.
Q: What was wrong with that?
A: If it had been legitimately a part of a news story, then it would have been fair use, but I’d used it because I needed a shot of the Capitol, and I’d lifted it out of the news story. I wasn’t commenting on it. I wasn’t critiquing it. It didn’t have anything to do with the history or the times. It was just there to be a shot of the Capitol. I probably could have gotten away with it, because it was pretty short, but the point is that Peter caught it [and showed how it wasn’t a good example of a fair use of an image.] I could have licensed it, but we had our own shot.
Here’s another anecdote. A film I made fairly recently, just two years ago, was about Bill T. Jones the choreographer. It was called The Good Man. So I’m having dinner with someone from American Masters, and a young woman who was working with us. She had been an intern at American Masters for many years, and she had introduced us to each other. We’re having dinner the three of us. Me and the woman from American Masters, we’re really hitting it off, we’re the same age, we know the same people, we share some of the same political values, and then the issue of fair use comes up (this was just two and a half years ago) and she goes: “Oh, I’ve heard about this, that woman came to speak to us. She’s a dangerous person, and she’s going to get people into trouble.”
“That woman” was my friend Pat Aufderheide. And the tenor of the meal changed. Well, by the time we had finished the Bill T. Jones film a year and a half later, they [American Masters] accepted all of our fair use claims. The reality is that it’s an education process. You publish the statement, and now you have to fight the battle. You have to educate people, you have to convince people that this is the way to do it. American Masters had been licensing stuff for years that they didn’t need to license, and so they were very invested in it.
The other thing, just to show you how bad it had gotten: Pat reminded me of this recently. When we held one of these meetings in our storefront, there was a woman there, an African American woman who had been a documentary maker and producer. But then she started doing shorts and theatrical stuff, and moved her into the area of drama.
I just thought her interests had changed. But at the end of the meeting, one of the things that she said was: “These problems was one of the reasons I stopped making documentaries. I felt that I wasn’t going to be able to say what I wanted to say because of the restrictions of having to license everything, and now I’m going to take a new look at documentaries.” A recent film that she made was on Independent Lens. So it changed a lot of things. Her name was Yvonne Welbon.
Q: That was actually one of the things I was going to ask, whether there are some subjects that don’t get examined as much through documentaries because of rights issues.
A: Well things to do with pop culture can get restrained. You had to license all the material from the people who produce the culture in the first place, and if you’re going to make a film that was very critical of that culture, then you’re in big trouble.
Think of a film like Byron Hurt. He’s another African American filmmaker who’s been part of this. He has a film called Beyond Beats and Rhymes. He loves hip hop, but he’s also very critical of hip hop, especially around issues of gay people and misogyny, and he made a very critical film about hip hop. There’s no way that they would have given him the right to license a lot of the material that he uses. But because he made it during the era of fair use, it’s a wonderful example of the kind of thing that would have been very difficult previously.
That’s what’s so important. It’s a right, and it’s part of a Democratic society. I’m sure at some point in time that I’m going to see someone use a clip from one of our films (and I almost never license anything from our films to anybody because our films are very intimate. We’re dealing with very personal stuff from people’s lives, things that are very personal to them.) I’m sure sometime I’m going to see something, and I’m not going to be happy about it, but that’s the price you pay for living in a Democratic society. You have to have these rights, and to have that balance.
Q: Has the Internet changed your work and the process of making documentaries?
A: Yes, it has, because there’s a Web component. There’s a social media component. We used to think of ourselves as activists and organizers. We used to go around with our films to show them to groups of people. Now a lot of that takes place on the Internet or on social media.
The Internet even becomes a part of projects during the production stage. I’m doing something now called 63 Boycott, and that’s something that I filmed back in 1963 when there was a racist school Superintendent in Chicago who put trailers in the back of a black school so that he didn’t have to place black kids into an underutilized school with white kids.
It triggered this huge boycott where over 200,000 kids stayed home from school. There was a big march downtown. I filmed all of this when I was a student at the University of Chicago. Fifty years later, I’m now making a film about it. We made a little organizing film around it into a 10 minute piece at the time, but now I’m going to make a longer film.
But the film is really driven by this Web site, where we have 500 or 600 still photographs lifted from the footage, where I’m trying to getting people to identify the people in the photographs. I’m looking for these young people to interview them today, and to try and get them to talk about the arc of their lives.
The Web site is as important as the film. People are identifying each other. They’re uploading their own stories to the Web site, and sending their own artifacts and pictures. We have a three-and-a-half minute clip on the Web site.
There’s a big struggle over the schools here in Chicago today. They closed 50 schools, and there have been all kinds of demonstrations. And some kid took the three-minute clip off of our Web site, interwove it with things they’re filming today, and made a new little piece on YouTube. So of course we tracked down those kids. It was great. We were thrilled. We had not known them. We just saw our footage and said “Hey, let’s go talk to these kids.”
View the original post on project-disco.org, and read Pat Aufderheide and Peter Jaszi’s report on the creative consequences of the rights clearance culture.