Adrian Salas IS 289-2, Copyright Fall 2014
Films from Films Intellectal property concerns in relation to films is a complicated field of stdy! "ch li#e any area that deals d eals $ith creati%e $or#s and all the attendant rights, mo%ing images present their o$n speciali&ed pro'lems that can 'e (ite opa(e legally! )his is componded $ith films de to all the players in%ol%ed in the creation, financing and distri'tion of mo%ing image $or#s! $o r#s! A speciali&ed area that has arisen in recent years is that of the clip film $hich is focsed on other films! )hese films are collage li#e $or#s that can ha%e aspects of 'oth docmentary and appropriation art depending on the creators aims! )he motion pictres in (estion can often 'e composed mostly, if not entirely, of pre%iosly created $or#s nder copyright! *o$ then are these films a'le to 'e made and released to the p'lic+ )he ans$er in many cases is throgh app lication of Fair se practices in secring intellectal property eemptions $here normal clearance of preeisting materials throgh licensing cannot meet the needs of filmma#ers for %arios reasons! In particlar, three films $ill 'e loo#ed at as case stdies of Fair se 'y filmma#ers! )hese mo%ies are Los are Los Angeles Plays Itself .)hom .)hom Andersen, 200/, The Clock .Christian .Christian "arclay, 2010, and Room and Room 237 .odney .odney Ascher, 2012! )he idea of assem'ling films pre%iosly esta'lished $or#s has 'een arond for a long time, at least in relation to the time span of mo%ing images as a medim! 1 In the 'oo# Films 'oo# Films Beget Films, Films, the athor ay 3eyda eplores the idea of the compilation film5 Salas 1 1 )he definition of "otion pictres5 according to 16 S Code Section 101 is adio%isal $or#s consisting of a series of related images $hich, $hen sho$n in sccession, impart an impression of motion, together $ith accompanying sonds, if any!5 any!5
$hich they foregrond as $or# that begins begins on on the ctting room ta'le, $ith already eiting film shots!25 )he athor goes on to epand his definition and focses hea%ily on footage 'irthed from ne$sreels! In an appendi to the $or#, the athor traces eamples of compilation films all the $ay 'ac# to 1914! Althogh the form has perhaps eisted a long $hile, the prodction technologies and legal processes ha%e not, so films of more recent %intage ha%e 'een created in $ays that are particlar to their more modern contet!
)he 7ro'lem )he films in (estion all are assem'led and prposed slightly differently, 't at their heart they eist as creati%e $or#s composed primarily of pre-eisting copyrighted $or#s! )o go throgh normal channels to get clearance on all the footage sed for the films from pre-eisting properties $old li#ely 'e a more *erclean tas# than the actal prodction of these $or#s, de to trac#ing do$n and negotiating $ith rights holders! %en $ere all the rights holders trac#ed do$n and permission per mission gi%en, the cost of licensing all the footage cold $ell srpass any prodction 'dgets these films are operating on!
)he Soltion 16 !S!C! : 106, Fair se ceptions )he nited States Code grants that the fair se of a copyrighted $or#, inclding sch se 'y reprodction in copies or phonorecords or 'y any other means specified 'y that section, for prposes sch as criticism, comment, ne$s reporting, teaching .inclding mltiple copies for classroom se, scholarship, or research, is not an infringement of Salas 2
copyright!5 )o determine determine if a $or# falls $ithin these parameters, 4 factors are $eighed to 2 3eyda, ay! Films ay! Films Beget Films. Films. ;eorge Allen < n$in 3)=! 3)=! 3ondon, 19>4!
ma#e a ?dgment prpose and character of $or#, natre, amont of original $or# sed, and effect on the mar#et! )hese aforementioned factors had 'een esta'lished in 1841 $ith the Folsom the Folsom v. a!sh case, a!sh case, 't only formally enshrined in the copyright code $ith the Copyright Act of 196>! )hese factors are only gidelines for the corts and there is no golden sets of nm'ers or 'right line tests for determining Fair se! As sch Fair se is largely p to the discretion of the cort and presiding ?dge so determining the %alidity of a fair se claim happens on a case 'y case 'asis! )his means that $hile it is a %alid stattory eemption, it $ill re(ire film ma#ers to rn a ris# analysis for themsel%es 'efore they attempt to in%o#e Fair se, to 'e sre they can reasona'ly defend their decision to operate nder its aegis rather than see#ing permissions from rights holders! )hat is not to say that filmma#ers sholdn@t attempt to contact rights holders for their 'lessing, or to in(ire a'ot terms for licensing licensing footage if it seems li#e something reasona'le can 'e arranged! t e%en if rights holders o'?ect to se of their properties, properly applied Fair se is still a %alid %alid legal strategy, as it is intended as a legal remedy to oneros restrictions that cold potentially loc# a$ay $or#s that ca n 'e reprposed for societal 'enefit or enrichment! Copyright is intended to encorag e the creation of ne$ $or#s 'y encoraging creators $ith protection and mechanisms to eploit their creations! )he pro'lem that arises thogh is that sometimes copyright gets too dracon ian in the $ay they can case $or#s to 'e loc#ed a$ay and pnish indi%idals $ho ha%e made distinct ne$ creations that incorporate reasona'le amonts of a pre-eisting creation and are done in good faith! Salas /
Clearances
)here are se%eral %arieties of clearances that filmma#ers need to ac(ire for prodction of most motion pictres! In the case of clip films, films, licensing footage and images is one of the most o'%ios shold one not settle on eclsi%ely going $ith Fair se to clear e%erything! "sic clearance is another matter! )he rights to msic are %ery complicatedly strctred, and consist of se%eral layers! Fair se is possi'le $ith msic 't it is mch harder to ascertain $hat is li#ely defensi'le as there is less settled case la$ in this area to refer to in ma#ing a ris# analysis decision!/ Sol%ing msic isses on one@s o$n is certainly not ad%isa'le, and shold 'ring in the ad%ice of an eperienced msic la$yer or msic sper%isor, as the many different interested parties and licenses in%ol%ed ma#e for (ite a mire of confsion! Shold one 'e constrcting script from tre e%ents, life story rights from one or more of the acti%e participants cold 'e %ery sefl to ha%e! )hey are not strictly re(ired, as one can legally se any tre facts that are ot in the p'lic to assem'le a story, 't they can 'e sefl to ha%e as they can indemnify yor prodction from actions 'y persons in (estion shold they ta#e isse $ith the film! )he life story right can also 'e helpfl in secring one co-operation 'y an interested party that can help in o'taining information not in the p'lic record! )itle clearances are something that fall nder a 'it of an o dd area as far as the la$ in concerned! )itles of films cannot actally 'e copyrighted as they are too short, an d seen as not meriting legal consideration nder the de minimis standard! )itle )itle clearances are Salas 4
still desira'le thogh as they can gard aga inst confsion in the mar#et place! Bne can / olliffe, ;ene%ie%e, and Andre$ innes! )he =ocmentary Filmma#ers *and'oo#! 1st ed! De$ Eor#, Eor#, DE Continm, 200>! 44-48!
hire an agency and o'tain a report that $ill otline any potential con flicts! As for items that can appear on camera in prodctions, that can 'e ' e a lengthy list! Inclded are %isal $or#s, 'ildings and locations, telephone nm'ers, actal names, and street addresses!4 Also one shold get releases from people appearing in scenes, and of cro$ds! Actal Actal prodcts can 'e sho$n, assming they are not sho$n in a 'ad light, $hich can then 'ring a charge of trade li'el! Also, etra care shold 'e sho$n if trademar#s or logos are depicted as this cold case potential conflicts and re(ire clearance! "any of the potential conflicts otlined here can 'e headed off dring pre-prodction 'y getting a script clearance report! )his report is done 'y specialists $ho $ill re%ie$ a script for potential conflicts and infringements that sho$ p and flag them so that they can 'e eamined 'y the film-ma#ers, and also their legal co nsel shold they ha%e it, to then the n ma#e decisions on $hat to change, o'tain clearance on, or proceed $ith sing as-is after condcting a ris# analysis! Ideally a script clearance report shold co%er A33 potential potential conflicts, e%en %ery minor sonding ones, so as to ma#e film-ma#ers a$are of any potential lia'ilities they are eposed to so that they ta#e pro-acti%e measres to ensre they are not sddenly the s'?ect of a la$sit or infringement claim from any one o f a range of potential claimants!
=onaldson, "ichael C!, and 3isa A! Callif! )he American ar AssociationGs 3egal ;ide to Independent Filmma#ing! Chicago American American ar Association, Association, Form on the ntertainment < Sports Indstries, 2010! 182-18>!
themsel%es against claims and sits once their film goes to mar#et! Filmma#ers mst let insrers #no$ that all efforts $ere made to o'tain clearances and a meliorate conflicts that arose dring prodction of the film, so that they can 'e issed a policy from an insrer that $ill indemnify them shold claims 'e 'roght for$ard! Insrers no$ recogni&e as a legitimate defense for their ses of copyrighted materials, and $ill offer p policies to filmma#ers $ho ha%e sed the fair se pro%isions in good faith in their prodctions! Bnce Los Angeles Plays Itself .200/ )hom Andersen@s Andersen@s film is a nearly three hor eamination and criti(e of the relationship 'et$een 3os Angeles and its portrayal in motion pictres across genre and time! )he film is a pastiche of mltiple clips of films from throghot film history that featre 3os Angeles in some significant $ay! )he film plays li#e a %isal essay as it is accompanied 'y narration scripted 'y Andersen, $hich eponds on his thoghts and .sally grochy criti(es of the depictions that 3os Angeles has 'een s'?ect to throgh the ages! )he film is an interesting case 'ecase it $as only sho$n in theaters, sally $ith the director in attendance, from its premier p ntil late in 2014 $hen it $as finally released on home %ideo! )he common co mmon story $as that the film cold ne%er 'e cleared for distri'tion, so it $old ne%er see the light of da y as a salea'le commodity! Salas > > =onaldson, "ichael C! Clearance and Copyright %erything Eo Deed to Hno$ for Film and )ele%ision! )ele%ision! /rd ed! 3os Angeles Silman-ames 7ress, 2008! /8>-/98!
According to the 3os Angeles )imes )imes article $ritten a'ot its home release, it trns ot that prominent fair se entertainment la$yer "ichael =onaldson had eamined the film as far 'ac# as its premier and ?dged that its commentary and critical method of sho$ing clips as central to the thesis Andersen had constrcted, most li#ely pt the film $ell on the side of Fair se! It seems the main srmise to 'e dra$n a'ot the delay of the film is pro'a'ly more o$ing to Andersen@s Andersen@s some$hat irasci'le natre and ho$ ho $ Andersen 'al#ed at paying the , 2014! Accessed =ecem'er >, 2014! httpOO$$$!latimes httpOO$$$!latimes!comOentertainme !comOentertainmentOmo%iesOla-et-m ntOmo%iesOla-et-mn-on-film-copyright-protectionn-on-film-copyright-protectionmo%ies-20140626-story!html!
8 A profile on Christian "arclay in the "e# the "e# $o!ke! $o!ke! gi%es gi%es a %ery good eplanation of ho$ he came to assem'le the Salas 6 $or# ale$s#i, =aniel! M)he *ors *o $ Christian "arclay Created the ltimate =igital "osaic!M )he De$ Eor#er, Eor#er, "arch 12, 2012
had o'?ected 'efore to his appropriation art! *e had a theory PIf yo ma#e something good and interesting and not ridicling someone or 'eing offensi%e, the creators of the original material $ill li#e it! 9@5 )his $old seem to indicate either a %ery ca%alier attitde from "arclay, or %ery naQ%e! )his attitde cold also 'e attri'ted to "arclay@s 'ac#grond $or#ing in the $orld of high art, $here a $ell-represented artist $ith financial 'ac#ing may 'e more li#ely to ta#e a ris# $ith releasing their $or# ot into the $orld and challenging any claims against them as the need arises! For instance, artist ichard 7rince has se%eral times made art $or#s $here there is %ery little apparent transformati%e se of the nderlying $or# he appropriates, 't corts ha%e still fond for his claims of Fair se, sch as in Ca!io% v. P!ince $hich recently $ent 'efore the S Cort of Appeals in the 2nd Circit in 201/! Similar rlings ha%e helped ot other appropriation artists too, sch as in Blanch in Blanch v. &oons in &oons in 200> $hich also had $ent 'efore the S Cort of Appeals in the 2nd Circit, and fond that Hoons se of part of a pre%iosly p'lished photo in a collage $as appropriately transformati%e to merit Fair Fair se considerations! An artist, inclding a %ideo artist sch as "arclay, is not necessarily tied into the same stdio distri'tion systems as other filmma#ers! Instead their representation 'y a gallery may allo$ for more lee-$ay in releasing a prodct into the $orld and then ta#ing on any challenges, especially as the lia'ility on their end may 'e less 'rdensome shold infringement 'e fond, as most of their $or#s are prposely more limited in distri'tion! In the case of "arclay thogh, his $or# on The Clock is is mch more clearly Salas 8
defensi'le as a fair se do to the s'stantial transformation of the completed $or#, and
9 ale$s#i!
especially the amonts sed 'y him to constrct a defined commentary and criti(e a'ot the perception of time! Clearing ten thosand clips indi%idally $old 'e a fool@s errand de to the time, epense, and logistics in%ol%ed, so Fair se is really the only %ia'le soltion for ho$ "arclay cold proceed $ith prodcing and clearing the $or#! Althogh, the amont of clips c lips in%ol%ed is %ery s'stantial, another factor in "arclay@s fa%or, fa%or, is that in constrcting his loose strctral dri%e for the piece, he is focsed on depictions of time in the cinema! )herefore many of his clips are relati%ely short sections of a film that are often only a fe$ seconds in dration, and in $hich a cloc# or $atch appear, or perhaps time is mentioned 'riefly! It $old 'e hard to arge that "arclay is preparing a deri%ati%e $or# that $old harm the mar#et for the original films, as he is reconfigring them so hea%ily and $ith sch little interest as to eploiting the heart of the $or#5 to his o$n ends! Room 237 .2012 Room 237 differs differs from the other films mentioned in that it is not a compilation of footage from mltiple other sorces, 't instead is prepared primarily $ith footage from Stanley H'ric#@s %ersion of The 'hining .1980! .1980! "ade to fnction as an eamination of .often far-fetched theories that fans ha%e de%eloped de %eloped a'ot Stanley H'ric#@s original film, Room 237 may may ta#e a s'stantial amont from a single $or#, 't throgh commentary and repeated analysis of mintiae that is present in scenes, it creates a $or# $hose mar#edly different from the horror film crafted 'y H'ric#! )he chance for confsion in the mar#etplace for the t$o films is remote enogh that the t$o can 'oth eist $ithot Salas 9
danger of Room of Room 237 damaging damaging the eploitation potential of The 'hining ! An interesting aside is that the H'ric# estate $as initially not going to allo$ the
film proceed to distri'tion! Althogh Althogh not actally needed for a case of pro%a'le Fair se, it e%entally came a'ot that H'ric#@s estate $as e%entally placated $ith a lengthy disclaimer that, on screen, sally reslts in one of the mo%ie@s 'iggest laghs 'ecase it ?st #eeps going! going!105 Lhile a disclaimer is not strictly a re(irement to apply fair se, it can 'e helpfl if it can appease the rights holder of a property form ta#ing frther action against yor prodct and sa%e on potential legal hold ps and fees do$n the road! A disclaimer can 'e a lia'ility thogh, if one is inclded $ithot any sort of prodding from sorces! ather $hat one shold do most times is credit the the sorce material 't 'e sre to not inclde etraneos e traneos $ording that cold misleadingly imply that license or permission $as granted to the material that is 'eing made tili&ed throgh fair se!11 Hey Cases and Lor#s In 200, the =ocmentary Filmma#ersG Statement of est 7ractices in Fair se5 $as released and pro%ided a tochstone for people to refer to in determining if a film can se Fair se to its ad%antage and $hat the filmma#ers mst do to ensre that their application of Fair se passes mster! Lith Lith docmentation in place, it helped codify a trn in attitdes to$ards acceptance of the p ractice of Fair se as a legitimate strategy! It illstrates that Fair se is a good faith action ta#en ' y filmma#ers create legitimate ne$ $or#s, and not ?st a $ay for them to circm%ent $hate%er systems that $ere in place to moneti&e or restrict access to copyrighted assets!
10 Lhipp, Nideo! *ereGs *o$!M Salas 10 ;lenn! MG3!A! 7lays ItselfG Is Finally Coming to *ome Nideo!
11 =onaldson, 4!
Lhile there are a myriad of cases related to Fair se as applied across the spectrm of creati%e $or#s, starting $ith the already mentioned Folsom mentioned Folsom v. a!sh decision, a!sh decision, there are also a set of case decisions that relate % ery directly to the application of Fair se to Adio %isal $or#s! Bill $or#s! Bill (!aham A!chives A!chives v. )o!ling &in*e!sley+ Lt*. Is Lt*. Is a case that deals $ith a 'oo# p'lished 'y the defendant in $hich concert posters from the ;ratefl =ead $ere reprodced in thm'nail si&e reprodctions for a coffee 'oo# a'ot the 'and! )he defendant approached the Archi%es for permission, 't $hen they $ere na'le to reach an agreement they $ent ahead $ith sing the thm'nail si&e reprodctions in the 'oo#! Lhen the ill ;raham archi%e sed the p'lisher claiming infringement the S Cort of Appeals for the Second Circit fond the recontetali&tion of the images as small thm'nails on a timeline $ith commentary to 'e Fair se! )he case esta'lished that si&e cold 'e a deciding matter in determining transformati%e se of copyrighted material! Len, v. -nive!sal is is a 2008 case 'roght ' roght in the Dorthern California =istrict Cort, in $hich ni%ersal "sic ;rop issed a ta#edo$n notice to a %ideo posted to Eo)'e Eo)'e in $hich msic 'y 7rince cold 'e heard playing! )he importance of this case is that the cort denied ni%ersal@s infringement infringement claim, 'ecase it did not consider Fair se 'efore issing a =igital "illennim Copyright Act ta#edo$n notice! A consideration of Fair se is no$ re(ired 'efore a ta#edo$n notice can 'e sent! Finally, 'ofa nte!tainment /. )o*ge! nte!tainment $as $as decided in 201/ in the 9th Circit Cort of Appeals! )his case concerns a short clip of The * '%llivan 'ho# 'eing 'ho# 'eing sed in the prodction of the play 0e!sey Boys $ithot Boys $ithot ac(iring license or a clearance! c learance! A cort fond that e%en thogh the Salas 11
play $as a commercial endea%or, the clip $as still still fair se it pro%ided historical contet to the e%ents 'eing portrayed on the stage! All the cases mentioned sho$ that Fair se is
a %ia'le defense, and there are e%en more that fnction as fondational spport to %arios other facets of this assertion!
Conclsion )he $orld of film prodction is filled $ith many ins and ots as far as all the factors that mst 'e appro%ed to prodce and then distri'te a motion pictre! 7articlarly challenging is sorting ot the intellectal property rights that are tied p $ith sing preeisting materials! )hese challenges thogh shold not preclde filmma#ers $or#ing in good faith and nderta#ing de diligence from sing properties to ma#e ne$ crea ti%e $or#s! If properly applied, Fair se can 'e a %ery po$erfl tool for opening p a%enes of epression, $hile still respecting the letter of the la$!
Salas 12
Lor#s eferenced
)oc%menta!y Filmmake!s 'tatement of Best P!actices In Fai! -se -se,, 200! Accessed =ecem'er 6, 2014! =onaldson, "ichael C! Clea!ance an* Co1y!ight ve!ything $o% "ee* to &no# fo! Film an* Television! Television! /rd ed! 3os Angeles Silman-ames 7ress, 2008! =onaldson, "ichael C!, and 3isa A! Callif! The Ame!ican Ba! Associations Legal (%i*e to In*e1en*ent Filmmaking ! Chicago American ar Association, Form on the ntertainment < Sports Indstries, 2010! *onthaner, %e 3ight! The Com1lete Film P!o*%ction 4an*book ! 4th ed! oston, "A Focal 7ress, 2010! olliffe, olliffe, ;ene%ie%e, and Andre$ innes! The )oc%menta!y Filmmake!s 4an*book ! 1st ed! De$ Eor#, DE Continm, 200>! 3e%ison, 3oise! Filmmake!s 3oise! Filmmake!s an* Financing B%siness Plans fo! In*e1en*ents! In*e1en*ents! >th ed! rlington, "A Focal 7ress, 2010! 3eyda, ay! Films ay! Films Beget Films! Films! 3ondon ;eorge Allen < n$in, 19>4! Lales, 3orene "! The Com1lete (%i*e to Film an* )igital P!o*%ction The Peo1le an* Salas 1/
the P!ocess! P!ocess! oston 7earson, 2012! Lhipp, ;lenn! MG3!A! 7lays 7 lays ItselfG Is Finally Coming to *ome Nideo! Nideo! *ereGs *o$!M Los *o$!M Los
Angeles Times Times,, ly 1>, 2014! Accessed =ecem'er >, 2014! httpOO$$$!latim httpOO$$$!latimes!comOentertainmentOmo%iesOla-et-mn-on-film es!comOentertainmentOmo%iesOla-et-mn-on-film-copyright-copyright protection-mo%ies-20140626-story!html! protection-mo%ies-20140626-story !html! ale$s#i, =aniel! M)he *ors *o$ Christian "arclay Created the ltimate =igital "osaic!M The "e# $o!ke! , "arch 12, 2012!
Salas 14
