June 19, 2003

Fair Use Is Free Speech: Don't Lose It By Succumbing To Censorship

If you work in contemporary or historical documentary or satire, chances are you've asked about rights: "Can I use this shot?" "Whom do I pay?" "Can I claim fair use?" And the all-important "How can I convince my Errors and Omissions (E&O) insurance carrier to allow me to do this?"

Rights clearance is often thought of as drudge work and paper-pushing, simply a matter of dollars and cents. You want to pay as little as possible; rights owners want to make you write a big check. But the truth is far more complicated, and our rights as storytellers and explorers of issues and ideas are being nibbled away by people charging us for things for which they have no legal basis.

Fair use, as it's known, is an exception to a copyright owner's control of the rights. In fact, in the case of fair use, you are not required to have the copyright owner's permission.

What is fair use?  Who defines it?  And what's the difference between being on one side of the fence and the other? If you're an artist whose work is included in another's without credit, attribution or remuneration, you're probably angry. But hold on. The other day a young filmmaker showed me a cut of a scene that I had loved just days earlier. Now it was flat and disjointed; the scene in the subway was cut out. Why? Because the MTA (New York's public transportation system) wouldn't sign a location release.

Why does the subway system control its image? It's a public place. Our pictures don't damage the subway, or diminish its rights. Nothing was taken. Who says that a public place even has the rights to control its image? Can Times Square demand that a documentary filmmaker get a release before walking on the street with a camera?

But this young filmmaker hadn't asked the question. She'd just followed the rules. Most cable networks require releases because it protects them from any potential claims, but it doesn't make for better filmmaking. By accepting this, rather than applying some common sense, this filmmaker censored herself.

Another story, this time about logos. I was shown a scene in which a Nike logo had been blurred off a T-shirt. "Don't worry" said the filmmaker. "Next time I shoot, I'll bring along a plain white one for my character to wear." So much for observational documentary.

Why blur the logo? "Because that's what MTV does," said the filmmaker. "Unless you have permission, you have to blur it." The truth is that MTV started blurring logos in videos years ago to stop giving away free product placement. Now a generation of filmmakers thinks that logos are off limits. But that's not true.

What can you do to get the straight scoop? Ask an attorney about rights and the answer will be a firm "maybe." There's the insurance company. And there's your distributor or network. And no one likes risk. So here are some rules of thumb to protect the concept of public domain for ideas and images:

1.    Are you damaging the owner of the underlying rights by republishing a poem, picture or song? Yes. By having eight seconds of music, or a photo on a billboard, in the background of a scene? No.

2.    Is the material worth fighting for? If it's essential to your creative work, you can't just walk away. If the rights clearly must be obtained, beg, plead and negotiate. But remember,  no one goes to jail for using a photo or logo. Ask your distributor to help you, and not just by hanging you out to dry if it matters.

3.    Get a lawyer who knows the law of fair use and other legal principles that relate to the inclusion in your film of pre-existing works, products, places and people, and who believes in fair use and access as a creative principle and social good. Yes, you need pragmatic advice, but the answer is not always "pay for a license, or you'll have trouble with E&O insurance." If your use is legal, a lawyer who really understands the issues can often write a letter assuring the distributor or insurer that your claim will stand up, or, at least, bargain for a realistic license fee.

Why does this matter? Here's the scary part. Right now, a Nike logo shot in public has no value; no one really pays for it. But if we keep blurring logos, and begin to pay subway systems, sports logos and public squares for the right to photograph them, we are giving those images value. Then, when filmmakers shoot them without paying, owners will have a legal argument that they're suffering a financial loss. Filmmakers can make things that are in the public domain private just by paying for them. And if we pay for a logo, then filmmakers who don't pay are stealing. This is a bad thing that could happen, when everything that filmmakers see around them requires reams of paperwork in order to be captured on film. 

Photographing the things around us is a right worth fighting for. For more information, check out these resources:

Steve Rosenbaum can be reached at steve.rosenbaum@CameraPlanet.com.