Law and fairness

[textualdeviance]

tcinseattle's post about copyright reminded me that one of the guys in my law class made an award-winning short film on the subject of fair use.

It's breathtaking, and I highly recommend it.

Comments

[textualdeviance.livejournal.com]

Hey you...

I'm around, yes. I'm going to the j. dept. picnic at noon Sunday, but other than that, I'm basically free.

[thefirstalicat.livejournal.com]

That short is interesting, but it raises a few questions for me, such as why isn't PBS, which originally broadcast the series (which I remember seeing, btw), insisting that it be kept available to the public? Why does this filmmaker think he's the only one who cares about this specific document, given that it is surely archived in every university that has a Black Studies program or a decent American History department?

Copyright law and fair use law are not in competition with each other, and creating a competition between the two is not useful.

At the moment, a wounded ex-soldier from the current Iraq War has chosen to sue Michael Moore for his appearance in F-911, stating (3 years after the fact) that his comments were misrepresented in the film. There is no doubt in my mind that if any defense is needed on MM's part (and that's by no means clear at this stage), the "fair use" doctrine will be invoked. And rightfully.

But if some guy is told that he can't use the footage in the PBS documentary, "Eyes on the Prize," does that mean that he is also being told that he can't use the same footage if he tracks it down himself instead of just taking it from that broadcast? The footage used in that documentary is independent of that documentary, was not made for that documentary, and is archived certainly in many places - Congressional archives given its historic significance and all of the different news media of the time, separately at different networks, and probably in places I haven't thought of too.

Fair use is paramount for a free society, but I don't think that the copyright lapse of a particular film that is made up of clips of events in the public record constitutes a restriction of fair use. Frankly, to me it sounds like a complaint that the new filmmaker will have to go back and look at all the original footage of events him/herself again, and edit it and comment on it and do, oh, all that work! when s/he knows it's already been done once, so why should s/he bother to do it again? Well, the reason why you bother to do it again is two-fold: to learn how to do it instead of just cribbing from what's been done, and maybe if you're lucky and insightful to see the historical record differently or to find something new to say.

Hmm. I started this reply in favour of the short film (which, btw, I did think was very well done), and end with a diatribe against lazy kids who want to use the work of others instead of doing their own. Does that make me a grumpy oldster or what?

[textualdeviance.livejournal.com]

Actually, much of the footage in question is not actually public domain, and the limits on fair use are extensive (and being made more so by greedy copyright holders.)

Fair use doctrine is only a defense--you can still get sued for using the stuff in the first place.

Then the judge will consider:

*the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

*the nature of the copyrighted work;

*amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

*the effect of the use upon the potential market for or value of the copyrighted work.

Generally speaking, fair use only comes down to one-time, non-commercial use for educational or news reporting purposes. Moore's film won't count, because it was a commercially-produced documentary. He made money from it, and it wasn't a one-time airing of a news program, nor was it made solely for the purposes of an established educational institution. He will likely lose the suit.

The filmmaker wasn't complaining that he couldn't use stuff from "Eyes on the Prize." He was complaining that that doco--and several others--are fading away into history because their filmmakers can no longer afford to pay royalties to the copyright holders of the original footage (most of whom are southern TV stations) and so therefore can no longer distribute their films.

Any new documentarian who wanted to cover the same subject would have to pay the same amount of royalties, making producing a new one prohibitively expensive for anyone without deep pockets.

A few copies of the existing docos available in libraries is good, of course, but they're not available to everyone, and since few of them are on DVD, their quality is deteriorating.

Meanwhile, the original clips are gathering dust in some storage shed in Alabama, and people are being deprived of being able to see them all because the station managers want a fortune for their use. It's not just famous stuff like MLK's speech, but some of the rarer footage that is at issue. What if the only filmic record anyone ever saw of the civil rights battle was the same famous clips everyone's already seen? What of the literally thousands of other clips and stills taken of various events were never seen again because the people holding copyright to them charged exorbitantly for their use, and refused to distribute them themselves?

PBS has no control over it, btw. The most they'd be able to do is provide funds to pay the royalties, but that's unlikely. They rarely have enough funds for new work.