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Fair Use Gets Insurance Coverage

Inspired partly by “This Film Is Not Yet Rated,” a veteran showbiz insurer has started offering coverage for documakers, aimed at allowing free use of film clips.

Initiative by Media/Professional Insurance is designed to explicitly allow documentarians to retain coverage if they rely on the “fair use” doctrine, which holds that copyright material may be used without compensation if it’s for purposes of criticism, comment, news reporting, teaching, scholarship or research.

Goal is to enable docus to contain clips without forcing filmmakers to pay hefty licensing or release fees. In the case of the “This Film Is Not Yet Rated,” filmmaker Kirby Dick included 134 clips without paying fees, which would have probably run in the $10,000-$15,000 rage for each clip. The clips in “Rated” were employed to portray the inconsistencies within the MPAA ratings system, often running side by side to depict violent scenes that were deemed acceptable and sexual scenes that were not. Pic, released by IFC, grossed $306,000 domestically.

“Documentary films are an important source of education, commentary and criticism,” said Leib Dodell, prexy of Kansas City based Media/Professional Insurance. “Rigidly requiring licensees or releases in all cases does not give filmmakers the flexibility to take advantage of ‘fair use’ in appropriate situations. This initiative makes ‘fair use’ in appropriate situations. This initiative makes ‘fair use’ work in the real world of independent filmmakers.”

Media/Professional, the nation’s largest provider of media liability insurance, developed the new coverage in partnership with the Stanford Law School Fair Use Project and several local intellectual property attorneys including Michael Donaldson, general counsel for Film Independent and the Intl. Documentary Assn. The additional coverage would probably range from several hundred to several thousand dollars, execs said Thursday at a media briefing.

Donaldson said at the event that there are two key questions for filmmakers wanting to employ “fair use”: Is the material needed to tell the story, and did the filmmaker use only what was needed. He also admitted he was somewhat surprised that no studio’s threatened to sue over Dick’s employing “fair use” for the clips on “Not Yet Rated.”

I fully expected one of those chest-beating letters from an attorney for a studio, but we never got one,” Donaldson said. “I was also quite confident that we would not be sued because Kirby took a very conservative approach on how the clips were used.”

Heightened profile for docs

For his part, Dick said he’s received many inquires from fellow filmmakers about his use of the clips and noted that the overall profile of docus has broadened significantly. “Documentary filmmakers are moving into the cultural debate now that the news media isn’t fulfilling its role,” he added.

IFC general manger Evan Shapiro said the initiative is particularly welcome since it comes at a time when getting clearances for use of copyrighted material has become much more difficult amid the explosion of digital platforms. “Trying to understand who’s the content owner is increasingly muddy.” He added.

Part of the initiative includes the availability of half a dozen Stanford Law School attorneys on a pro bono basis to filmmakers who comply with the Center for Social Media’s guidelines, published in 2005.

“This initiative will let filmmakers stand up for their ‘fair use’ rights where they were unable to do so before,” said Anthony Falzone, exec director of Stanford’s Fair Use Project. “Copyright holders will no longer be able to rely on fear and intimidation. Everyone will be on a level playing field.”

IDA prexy Diane Estelle Vicardi made an announcement about the Media/Professional policy Wednesday night at a reception for documentarians and the Academy of Motion Picture Arts & Sciences, leading to a standing ovation by attendees.