« Mo' Money for... What?

Last on the To-Do List: Arts Funding »

Feature Wed May 06 2009

For Filmmakers, A Showdown Between Creativity and the Law

By Lindsay Muscato

This week in Washington, Chicago filmmaker Gordon Quinn and other advocates prepare for the next battle for filmmakers' right to quote from their culture. Mass-produced DVDs often encrypt films so that they can't be copied, and filmmakers can't excerpt them without circumventing the copy-protection. Right now, cracking into these DVDs is a crime -- even if it's legal to use the media behind the locked door. Quinn and others argue that filmmakers should be exempt from this law, the Digitial Millennium Copyright Act.

Chicago filmmaker Gordon Quinn

Quinn has spent the past few years working to make sure big corporations can't impact the artistic freedom of documentary filmmakers, an issue that bubbles up often when pointing a camera at the owned world. Try walking down a city street without passing Coke ads, T-shirts sporting swooshes, and music spilling from a car stereo. Until recently, filmmakers capturing reality had little guidance about legal boundaries for what copyrighted material they could and could not include in their films, so they often erred on the side of caution.

To bring more clarity and a sense of unity to the field, local filmmaker Gordon Quinn joined forces with other advocates and experts. Quinn is the artistic director and founder member of documentary company Kartemquin Films, a Chicago company perhaps best known for the 1994 film Hoop Dreams, though it regular produces films on a wide array of topics like its recent Peabody Award-winning film on stem cell research. These days in addition to making new documentaries, he tours the country and the world to advocate for the rights of filmmakers to use copyrighted material when it's legal, whether or not big companies doth protest.

"A democratic society has certain needs," Quinn says. "It has to be able to critique and quote from and parody and put things in the context of the culture."

A lawsuit can easily sink a small indie documentary before it even hits screens -- and for decades, starting in the late 1980s, the idea of a lawsuit was enough to make filmmakers pay for the rights to clips and songs that appeared incidentally in their films, whether the law said they had to or not. Quinn says, "Big rights holders started sending out all these threatening letters, not to the makers of films like us but to the gatekeepers, the broadcasters the insurance companies and distributors."

Jonah Zieger, assistant professor at the School of Cinema and Interactive Media at DePaul University, calls it a "web of paranoia." He says, "Big corporations were really pushing the idea that you had to license everything always."

Misinformation didn't help. Quinn says, "People were talking about this thing called the '30 second rule' -- like you could use 30 seconds or less and that would be ok. There actually is no such rule, it's whatever you need to make your point as long as it's fair use."

One major step for filmmakers has been a booklet called the "Documentary Filmmakers' Statement of Best Practices in Fair Use" [PDF]. Quinn, in collaboration with Peter Jaszi at American University's Washington College of Law and Pat Aufderheide from the Center for Social Media created the document and has been distributing it nationwide. Created after a series of meetings held around the country, it's both a reference for filmmakers and a tool when corporations try to threaten legal action when copyrighted material appears in a film.

The statement outlines the intellectual property rights of filmmakers and rights holders, describing four basic situations and defining fair use for each: making a critique, using selections from material to illustrate a point, capturing copyrighted material in the process of filming something else, and using copyrighted material to show a historical time.

Quinn knows the sting of paying up. At a talk hosted by IFP Chicago, Quinn told a group of up-and-coming filmmakers how the traditional song "Happy Birthday to You" cost him $5,000 because the rights are owned by Time-Warner. The song appears in Hoop Dreams during a crucial scene depicting the emotional milestone of his subject's 18th birthday. And then there was the Muzak playing on the overhead speakers when he interviewed a mother in a hospital for another film. "We didn't even want that [music] the film, we wanted the staff to just turn it off, but they didn't for whatever reason, and what are you going to do? We needed that interview."

Context is key, Zeiger says, and he'll have to confront fair use issues for his upcoming documentary, which centers on professional movie extras. "It'd be impossible to make this documentary without using clips that my subjects are in," he says. "But at the same time, it's sort of a new way of looking at movies and cinema history, so the clips I use will be really close to the purpose at hand."

Chicago filmmaker Dennis Belogorsky, Executive Director of the media arts organization Split Pillow, says that just the possibility of litigation, or of his film being turned away from media gatekeepers because of rights issues, has made him steer as far as possible from any potential copyright issues because he's working on such a shoestring. "If a distributor is interested but then finds out you didn't clear 'Jumpin' Jack Flash' or whatever... if that's a dealbreaker for the distributor then the whole project could just fall apart. It's enough to make it not worth it."

Right now Belogorsky is working on Life as Lincoln, a film that follows three Abraham Lincoln impersonators. Mostly, fair use isn't an issue because Abe is a historical figure. But he isn't taking any chances: "We filmed a group of four guys singing Civil War songs... now, my gut feeling is that they're not copywritten... but it's something we're going to have to do our research on. If you can get a copyright for 'Happy Birthday' you can get a copyright for anything."

Quinn, Zeiger and Belogorsky all stress that as artists, they're rights holders as well as rights users. No one is advocating that everything should be free always -- though that's exactly what's happening online.

Zeiger says: "I think with the explosion of the Internet, so much violation of copyright is going on all the time now, way more than there ever was. People do need to realize that they are violating copyright and they can be sued."

Belogorsky, who teaches kids through his work with Split Pillow, often schools his students on copyright -- and new questions surface all the time. He says, "The next big thing will be all this user-generated stuff, like who owns all the videos and images people post on social media sites like Facebook. There's battles being fought and it's still not clear who owns what."

By lobbying for an exemption to the Digital Millennium Copyright Act, Quinn is tackling another hot issue -- DRM, digital rights management. In documentation submitted to The Library of Congress for the May 7 hearing, it says:

Gordon Quinn's The New Americans, a PBS documentary series following several immigrants before and after they come to the United States, sought to educate the public about immigration issues. One of the subjects of the documentary series mentioned the movie Coming to America, a comedy about an African prince immigrating to the United States. Quinn wanted to use a clip from this movie to show what the subject was referring to and to "provide a counterpoint to [the subject's] own immigration story." Quinn ultimately had to eliminate this piece of the documentary because he did not want to circumvent the CSS on a DVD copy of Coming to America.

Quinn says: "This exemption from the DMCA for documentary filmmakers is a great step in preserving the right of fair use in the digital age, which is a crucial right for a functioning media and democracy. Allowing documentary filmmakers the right to access materials from DVD for fair use purposes will ensure that artists and filmmakers remain relevant contributors to the arts, and up-to-date interrogators of culture."

Zeiger points to the plight of 1996 documentary Wanderlust, a clip-heavy film about road movies. In a 1996 New York Times article, filmmaker Alicia Sams said: "Paramount wanted $20,000 for 119 seconds of 'Paper Moon'... "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."

When talking about fair use, Quinn often refers back to the Universal Declaration of Human Rights, passed by the United Nations in 1948, which contains two seemingly opposing statements in Article 27:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

"You can't be kept away from your culture," Quinn says. "And at the same time you have right to make a living off what you create. The key is finding the balance."

It's one balancing act, and one victory, at a time. After paying out for the birthday song in Hoop Dreams, Quinn says he desperately tried to avoid a repeat while making The New Americans, when the song was sung in Spanish by a family during an important scene. "We were incredibly broke," Quinn says. "I said fuzz it out, put music over it, anything..." The final film shows the family preparing to sing and then fades quickly into another song that plays over the rest of the scene as the first syllable leaves their lips.

But today he'd claim fair use with confidence. Quinn says he's been waiting for big corporations to take a stand against him and other advocates, but so far that hasn't happened. "We've changed the world on 'happy birthday,'" he says.

Learn more:

• Kartemquin Films
• The Center for Social Media
• Lawrence Lessig, founder of the licensing organization Creative Commons, speaking as part of TEDTalks on creativity and the law.

About the Author:

Lindsay Muscato is a Gapers Block staffer who escaped from a toaster fire in Buffalo, NY at the age of four. She now lives in a slanty shanty in Andersonville, has written and performed with Around the Coyote and 2nd Story, and she's the managing director of The Neo-Futurists. Read her scribblings at lindsayliveshere.org.