Amicus Award–Fair Use’s Best Friend: Michael C. Donaldson
By Agnes Varnum
There was a time, not long ago, when the thought of using material that could not be cleared was quickly banished from a documentarian’s mind. Incidental capture of music and logos were feared by makers who found, after completing their films, that reputable outlets and distributors would not work with their films unless every possibly copyright-protected part of the movie was cleared, and no one understood the difference between copyright and trademarks. It was a seller’s market, and copyright holders were wielding their power to extort exorbitant prices out of filmmakers who had none to spare.
While the cost in dollars was high, so, too, was the cost to our culture and shared history. Henry Hampton’s Eyes on the Prize, a 14-part series about the American civil rights movement, premiered on PBS in 1987, and The New York Times called it “the most ambitious documentary undertaken by black filmmakers, and one of the largest television series ever undertaken by a black-owned company.” It won six Emmys and numerous other awards and was praised universally for its treatment of that important time period. Yet, the film fell out of distribution because the filmmakers were unable to afford to clear all rights in the clip-laden movie in perpetuity. Libraries hoarded their VHS copies, and as the tapes broke and lost their images, the fate of that film became a rallying cry for change in 2004.
Various groups around the country began reacting to the restrictive “clearance culture.” Flouting the law and putting up bootlegged clips on YouTube was not a viable option for professional filmmakers, yet a solution to the problem was nowhere in sight. It appeared that the legal community sided with the corporations that had built up the clearance culture through their dealings with filmmakers and political lobbying, or at least preferred to take the route of least risk in dealing with clients who could not afford to be sued. Enter Michael Donaldson.
Academic lawyers like Lawrence Lessig touted “free culture” and rewriting copyright laws from the ground up, but Donaldson, along with Patricia Aufderheide and Peter Jaszi from American University and others, recognized the need among working filmmakers for a more immediate solution that did not involve breaking the law. The premise of their work, culminating in the Documentary Filmmakers’ Statement of Best Practices in Fair Use, was that the legal basis for citing the work of others, in the form of including copyright-protected materials in a film, already existed in the “fair use” doctrine. It was written into copyright law as the safety valve that allows for quoting the work of others to make new work. Copyright was meant to allow creators to capitalize on their work, not to log-jam new creation.
“He was the earliest entertainment industry lawyer to embrace the concepts in the Documentary Filmmakers’ Statement of Best Practices in Fair Use; indeed, we were grateful when he accepted a post on the legal advisory board,” says Aufderheide. “Michael has never been an ideologue. He has been the best friend documentary can have. He values the work and the makers, and he enables it by his relationships with a wide range of industry leaders.”
Donaldson has been practicing entertainment law for over 30 years, and his experience and profile in the industry allowed him to easily fill the vacuum of legal expertise in favor of “fair use.” But it is his continuing devotion to helping filmmakers understand the legal issues surrounding their work, and advancing the cause through his professional associations, that have given him a lasting place in the pantheon of documentary.
“This might sound cliché, but it’s absolutely true: This Film Is Not Yet Rated would not have been the same without Michael Donaldson,” says Eddie Schmidt, the film’s producer, and current president of IDA’s Board of Directors. “From the first moment he and I were introduced at the Spirit Awards, through the day he joined us to appeal our MPAA rating, and way, way beyond, Michael was an integral part of the process.” He goes on to say that even the story of the film was shaped with Donaldson and his partner Lisa Callif’s “meticulous work.”
But it isn’t only filmmakers Donaldson has sought to educate and influence. He successfully worked with several insurers, such as Media Professional Insurance Company and Chubb Insurance Company, to offer fair use riders on E&O insurance policies. Aufderheide notes, “He pioneered agreements with insurers, which now allow filmmakers to have choices in errors and omissions insurance for fair use claims and reasonable prices. He has had a multitude of quiet conversations with high-level industry executives, which have normalized the notion of fair use.”
Donaldson also sits on the Advisory Board to Stanford University’s Fair Use Project; he has worked on Orphan Works legislation; he has taken the fair use argument abroad by assisting in drafting of the Rome Resolution of 2007, aimed at harmonizing fair use across the European Union; he served as president of the Board of IDA Directors from 2001 to 2004; and he has authored several must-have books, including Clearance & Copyright, now in its third edition and used as a textbook in over 50 colleges and universities.
“Beyond fair use, Michael’s been an overall advocate for documentary and independent filmmakers with regards to copyright, free speech and labor issues, to name but a few,” says Schmidt. “If there is anyone who truly deserves to be a ‘friend of the court’ with the Amicus Award (‘the court’ being the filmmaking community-at-large), it is Michael Donaldson.”
Donaldson has been key in helping the documentary community, beyond his own clients, understand the law surrounding the creation and selling of films. His impact is significant and his legacy lasting, through such films as IOUSA, Who Needs Sleep? and Roman Polanski: Wanted and Desired; through his legal clinics; and through his books, which educate filmmakers and lawyers around the world.
Auferheide says it best: “We are lucky to have Michael Donaldson on the side of documentary.”
Agnes Varnum is the communications manager at the Austin Film Society.