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No Free Samples for Documentaries: Seeking Film Clips With the Fair-Use Doctrine

Columbia Pictures In "Wanderlust," from left, Dennis Hopper and Peter Fonda in "Easy Rider."

The film producer Alicia Sams viewed “Wanderlust,” a documentary about American road movies, as a way of introducing a new generation to Bonnie and Clyde, Thelma and Louise, and other giants for the genre. Films like “Five Easy Piece,” “Easy Rider” and “The Grapes of Wrath,” she was convinced, offered a window into the American character.

The 90-minute documentary, to be broadcast Monday night on the Independent Film Channel, was also a window into the frustrations of making a clip-intensive film dependent on copyright clearance, which has become hugely expensive in the past decade. Initial quotations for the necessary sequences came to more than $450,000, which would have raised by half the cost of the IFC film, direct by the Oscar-nominated team of Shari Springer Berman and Robert Pulcini (”American Splendor”).

“Paramount wanted $20,000 for 119 seconds of “Paper Moon,” Ms. Sams said. “The studios are so afraid of exploitation that they set boundaries no one will cross. Even after the prices were cut, we were $150,000 in the hole.”

Unwilling to pay those fees, IFC’s general manager, Evan Shapiro, helped Ms. Sams pursue another, more aggressive, track, which may point the way for documentarians who want to tap movie iconography without paying studio prices, Its strategy involved some negotiating hardball, backed up by a willingness to fall back on the tricky legal doctrine known as fair use.

Mr. Shapiro called in a Los Angeles entertainment lawyer, Michael C. Donaldson, who drilled him on copyright law. Under the 165-year-old fair-use doctrine, Mr. Shapiro was told, filmmakers, news gatherers, critics and educators can access material at no cost if they add something to it (like a voice-over), don’t undermine its value or use more than needed to make a point. Free speech trumps private property when a project is in the public interest, a term broadly defined.

“Fair use is the lubricant that allows creativity and copyright law to coexist,” said Mr. Donaldson, a former president of the International Documentary Association.

Though many public-affairs programmers employ the fair-use concept, cable outlets-the major producers and distributors of documentaries – have been reluctant to do so, as budgets for documentaries are low and litigation expensive. And it’s hard to get insurance for “errors and omissions,” the media version of malpractice, unless everything is licensed.

Mr. Shapiro had vowed never to embark on another clip-heavy film after Xan Cassavete’s “Z Channel: A Magnificent Obsession,” a costly 2004 profile of a cable network and used scenes from movies like “Salvador” and “400 Blows.” Rights had to be purchases separately for home video and film festivals, and renewed periodically. But “Wanderlust,” set in motion by a predecessor, was a chance to set a precedent.

We’re taking on the fight not only with “Wanderlust” but also with the upcoming “This Film Is Not Yet Rated,” said Mr. Shapiro, referring to a clip-dependent critique of the film ratings system set for release in theatres later this year. “That was made, from the start, under the fair use doctrine, as all of our documentaries will be from now on.”

Mr. Donaldson began contacting the studios at the Berlin film festival in February, initiating talks that dragged on for months. Accept $1,000 a title, he said, or IFC will move ahead anyway. Though Paramount held firm, 13 of the 18 copyright holders accepted the offer, including Sony Pictures Entertainment, MGM, Universal Studios, Miramax Films and Warner Brothers Entertainment, whose price was cut from $149,850 to $8,000. In the end the clips cost IFC les than $50,000. The holdouts advised IFC to rely on the fair-use argument, which, after viewing the film, they said they might legally challenge. (Mr. Shapiro is ramping up his insurance and putting anyway money in case that happens.)

Everett Collection – Tatum and Ryan O’Neal in “Paper Moon.”

Copyright law is not being used to stonewall filmmakers but to protect corporate assets, argues a licensing executive from one of those studios, who was granted anonymity because of his company’s press relations policy.

Because of the proliferation of clip-generated programming, movie clips are in great demand. The executive said his department had no problem when broadcasters use unlicensed sequences to mark the death of an actor, and it has a lower rate fro “nonprofits.” But “Wanderlust” is a commercial product that will, undoubtedly, have a shelf life.

“Fair use is a defense sometimes used, after the fact, to justify the appropriation of footage without asking,” the executive said. “The producers could have used shorter clips, or even still photographs. If someone can’t afford a Mercedes, that doesn’t mean he can’t drive.”

One copyright holder, James Velaise, the president of Pretty Pictures, ultimately agreed to license a clip from Francoise Truffaut’s “Breathless” for $1,000, a fraction of his usual asking price. Still, he said he took issue with IFC’s take-it-or leave-it approach and the introduction of fair use. Using the argument to save “a few thousand bucks” is “thoroughly dishonest,” he wrote in e-mail messages sent to Mr. Donaldson’s firm. It’s a tantamount, he said, to stealing. “I was simply blackmailed,” Mr. Velaise said from his Paris office. “And why pay anything if that lawyer is so sure of the law?”

No such confusion with Kirby Dick’s “This Film Is Not Yet Rated.” While “Wanderlust” employed a hybrid approach, fair use was the only option because of the volume of cli[s and the provocative subject matter. Licensing 135 excerpts at an average of $10,000 each would have doubled his budget, Mr. Dick said. And projects that ruffle the feathers of the media establishment, he suggested, face insurmountable challenges. Some licensing agreements prohibit negative portrayal of copyright holders, he observed. And others preclude the use of the clip in films not rated NC-17, which no on 17 or under can attend. He would be sued from breach of contract on both counts, he said, because his documentary takes aim at the studios and carries the NC-17 tag.

The enemy is not the copyright holders but ignorance of available option, other filmmaker san their advocates maintain. To address the problem, IFC is formulation its own fair-use guide, and last November, Pat Aufderheide and Peter Jaszi, communications professors at American University, coordinated a statement of fair-use practices drawn up by a coalition of filmmaking groups. Ms. Aufderheide has since met with the History Channel, Court TV and the Corporation for Public Broadcasting, among others, teaching them the value of fair use, economic as well as creative.

“IFC is positioning themselves as hard-charging rebels,” she said. “But by lowering their clearance costs, they’re actually canny businessmen.”

Because fair-use boundaries are seldom clear, lawyers are needed to interpret each case, said Prof. Lawrence Lessig of Stanford Law School. Earlier this month he announced the formation of a co-op of lawyers based at Stanford that will donate services to fair-use filmmakers.

“Shapiro is fighting the good fight,” Professor Lessig said. “But the danger of drawing a line in the sand is that others will try to erase it.”

NY Times Article