In Mad Hot Ballroom, the documentary about New York City public school fourth graders who enter a city-wide ballroom dancing competition, the camera follows one of the students walking home from school with his mother. She asks him how his day was but before he can utter a response, they are interrupted by the mother’s ringing cell phone, which she answers immediately. That moment was “such an indicator of today’s culture…The look on his face says ‘I don’t get to tell my mom about my day,’” explains Amy Sewell, one of the producers of the film. Adding an additional layer of resonance, the mother’s ringtone was Gonna Fly Now, the theme from Rocky. Like Rocky, this documentary was an underdog story.[ii] The filmmakers must have felt incredibly lucky to have captured such a fitting and fortuitous moment on camera. However, the scene not only turned out to be lucky for the producers but also expensive.
Of course, the famous Gonna Fly Now is copyrighted and owned – by the major record label, EMI Music. When the filmmakers sought to clear the song with EMI, the copyright owner asked the first-time producers for $10,000 to use the six seconds of the ringtone captured in the film. After four months of pleading Sewell was finally able to negotiate the price down to $2,500.[iii] Although most fledgling producers are rarely successful in negotiating such a significant price decrease in a situation like this one, this was only a small victory for Sewell: Even “discounted” by EMI, $2,500 is an expensive price to pay for six seconds of one scene in a low-budget documentary film.
It is obvious that the fortuitous capture of copyrighted works on camera helps to establish historical and cultural context in documentaries, whose purpose is often to educate moviegoers and to provide commentary on many diverse themes. It seems unfair, then, to require a documentarian, whose goal is to capture the subjects of the film in their unaltered surroundings and who ultimately creates works of significant public interest, to pay exorbitant fees for the use of fortuitously captured copyrighted works. Nonetheless, despite this inequity, the payment of licensing fees to copyright owners or simply editing out the copyrighted material has been the common practice for long time.
In part, the motivation underlying these common practices is the fair use doctrine, which governs the use of copyrighted material and is derived from the federal copyright statute and subsequent case law dealing with this issue. Unfortunately, the case law rarely affords a clear-cut answer to questions of fair use. The doctrine of fair use is a constantly evolving organism which courts apply on a case-by-case basis, thereby establishing very few clear, “black letter law” principles. Unfortunately, too, the wariness of many entertainment lawyers only serves to magnify further the ambiguity of existing case law and leads to a chilling effect in practice – i.e., the creation of a “clearance culture” in the film industry.
Entertainment lawyers are usually reluctant to suggest that filmmakers assert fair use. More often than not they advise their documentarian clients to avoid the risk of litigation by clearing the rights instead. As a litigation-avoidance strategy in-house legal departments at large media entities often impose guidelines on their producers by requiring them to clear everything.[iv] Part of their motivation for clearing everything may result from the reality that these big media entities are also licensors who do not want to bolster the fair use defense by asserting it themselves. Nevertheless, the result of this preference and practice is that big media companies automatically pay licensing fees without even considering the assertion of fair use, and thereby they have created an industry culture of rights clearance. Although this system may work for big media entities, it creates stifling costs for the average documentarian.
In addition, the consistent failure to assert fair use also bolsters the industry custom of demanding presumptive rights clearance even when it may be unnecessary, thereby creating a further chilling effect on the documentarian’s process. The inability to gain access to copyrighted material, whether because of its high cost or because the rights holder withholds permission, can result in the loss of crucial material within a documentary or even the disappearance of an existing documentary from circulation. As a result, this clearance culture creates immeasurable losses to society in the phenomenon of “untold stories,” films that go unmade because the filmmaker decided that his concept would likely be impossible to produce because of his need to rely on copyrighted materials to tell his story.[v]
Fortunately, the introduction of the Documentary Filmmaker’s Statement of Best Practices in Fair Use (the “Statement”) marked a turning a point in this area of practice. Issued in 2005 by the American University Center for Social Media (AUCSM), the Statement served to clarify some of the murky law underlying the fair use doctrine and to assist documentarians in identifying situations where they could reasonably assert fair use.[vi] Class Three of the four classes covered by the Statement is entitled “Capturing copyrighted material in the process of filming something else.”[vii] This section specifically addresses the issue of fortuitously captured copyrighted materials and suggests that a situation like the one discussed above regarding Mad Hot Ballroom would fall within the doctrine of fair use. Although the Statement is not legally authoritative, it does nonetheless provide documentarians (and their lawyers) with the confidence and the much-needed leverage to assert fair use. The Statement has certainly helped this law firm to assist our documentary filmmaker clients in asserting legitimate fair use and in obtaining indispensable errors and omissions insurance. The more that documentarians assert fair use, the closer we will come to enjoying a “counter-clearance culture” in which filmmakers will succeed in adjusting common practice in the industry so that it better reflects the inherent intent and purpose of the fair use doctrine.