Feature

Copyright Extensions, Fair Use, and the 21st Century Filmmaker

Laura A. Godorecci And Walter G. Lehmann

©2013. Published in Landslide, Vol. 5, No. 3, January/February 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

With the rise of the Internet Age and its accompanying leaps in video and audio recording technology, more people than ever before are trying their hand at independent filmmaking and new media production.1 Handheld camcorders costing $300–$500 shoot 1920 x 1080 HD video.2 Lavalier microphones priced under $20 record pristine sound.3 Those who might once have let a spark of interest in filmmaking flicker at the prospect of entering the industry can now shoot a theater-grade movie with a prosumer4 camera, or pull out an iPhone,5 set up a YouTube channel, and become their own indie production house.

This increase in amateur filmmaking6 has also led to a growing number of Internet stars and no-budget filmmakers running afoul of U.S. copyright law. Millions7 of content creators, many working alone and lacking (reliable)8 legal counsel, have saturated the filmmaking world, risking liability as they often unknowingly infringe on others’ copyrights while pursuing their artistic passions. For U.S. filmmakers, two legal issues in particular create friction: the length of copyright protection under current U.S. law, and uncertainty in the application of the doctrine of fair use.

Relevance of Eldred v. Ashcroft and the Copyright Extensions of the 20th Century

Accompanying exponential growth in the categories of works that copyright protects,9 the length of copyright protection under U.S. law has formally increased four times since the initial Copyright Act of 1790. Three of those four major term extensions occurred in the 20th century.10 The last of these, the Copyright Term Extension Act (CTEA) of 1998, established copyright’s current durations: life of the author plus 70 years for works of individual authorship, 120 years after creation or 95 years after publication for works of corporate authorship, and 95 years from publication for works published prior to January 1, 1978.11 The CTEA altered “both future and existing copyrights”12 and removed any doubt as to whether a copyright’s duration would categorically outlast an average human lifetime. The CTEA also underlined Congress’s ability and growing tendency13 to extend the duration of copyright just as certain works approached the public domain.14 Such actions cast doubt on whether copyrights are indeed “limited”15: doubt that formed the grounds for part of Eldred v. Ashcroft’s16 challenge to the constitutionality of the CTEA.17 The Supreme Court in Eldred, however, held that because the post-CTEA durations were still technically defined in terms of years, the CTEA’s extensions were limited and therefore constitutional.

The legacy of Eldred is one of uncertainty, particularly for filmmakers building upon the works of others. Works such as documentary films that comment on, interpret, or critique aspects of our shared culture are especially affected.18 For the no-budget filmmaker, the costs of licensing rights during the creation of such works can quickly grow prohibitive: as one example, the lowest cut-rate price offered by a major music studio for a one- to two-year, film festival-only synchronization license for partial use of a cover of a noncontemporary song in a $0 budget film is $500.19 With works copyrighted as far back as 1923 still not in the public domain, and with strong precedent now in place supporting future extensions of copyright, many filmmakers are left with few options: pay (often no option at all), change their artistic vision, or retire an artistic effort.20

The Nebulousness of Fair Use

Another problem for today’s no-budget filmmakers is the uncertainty of fair use. As noted, many filmmakers rely on sampling the works of others. Significant numbers of new media productions are also primarily or entirely composed of portions of other’s original works.21 Given the likelihood of sampled works being copyrighted in post-CTEA and Eldred America, no-budget filmmakers can either attempt to raise the money needed to license every work they wish to use, or try to rely on fair use. Unfortunately, fair use cannot be firmly relied on.

First and foremost, fair use cannot prevent an artist from being sued: artists can only employ fair use as an affirmative defense22 once they are already in court, and fighting powerful copyright holders is often wholly impracticable for no-budget filmmakers.23 Second, fair use has no bright-line rule. Rather, fair use analysis employs a series of nonexhaustive factors that courts may apply case-by-case.24 Of the fair use factors, the commercial nature of an unlicensed use is often key in deciding fairness, though the courts have insisted that commerciality should not be dispositive.25

Filmmakers aiming for fair use are often counseled to use their best judgment as to what might constitute “excessive economic harm” to the copyright holder of a sampled work.26 Yet even uses falling well within a reasonable person’s estimation of what is economically harmless have been found to run afoul of fair use. In a prominent example, producers of the 1990s television series Roc were sued by artist Faith Ringgold for unlicensed use of a poster depicting her work Church Picnic Story Quilt. The poster was used as a set dressing and appeared, never in its entirety and always out of focus,27 in the background of a single scene. The shots featuring the poster totaled 26.75 seconds, and any given shot including any portion of the poster lasted between 1.86 and 4.16 seconds.28 The Second Circuit held that this use was not conclusively fair.29

The court’s reasoning in Ringgold hinged on two major points. First, the court held that the Roc producers’ use of Church Picnic was not transformative: as a set dressing, the poster was used for its intended decorative purpose.30 Second, the court stated that the proper market to consider when looking for economic harm was not the general market for Ringgold’s work, but rather the specific market “for licensing her work as set decoration.”31 Both of these points raise important questions. What use is a sufficiently “transformative” use of a copyrighted work in an audiovisual context? The same Second Circuit has answered this question somewhat since Ringgold in the context of static visual art32 and print works,33 but filmmakers remain stranded with little guidance on the matter. The film industry, and documentarians particularly, have taken matters into their own hands and set out best practice guidelines, positing that fair use should always apply when copyrighted material is: (1) the object of critique, (2) used to illustrate a point regarding popular culture, (3) captured naturally in the process of filming subjects in real-life settings, and (4) used to tell a historical story or make a historical point.34 Yet these guidelines are only guidelines, and filmmakers who rely on them may still end up in court.

The Ringgold court’s market analysis also illustrates an important evolution in copyright law. At copyright’s inception, two parties formed the focus of copyright law: artists on the one hand, and the public on the other. Copyright would benefit the public by giving artists the support necessary to invest time and effort into creating new works.35 However, post-CTEA, copyright law seems to have shifted its attention from the ultimate interest of the public to the economic interests of copyright holders, themselves often no longer synonymous with artists or content creators. The Ringgold court’s market analysis supports a modern-day copyright law that favors a copyright holder’s right to make money from every possible market for an artistic work, even when this right cuts into other artists’ and the public’s interests. The Ringgold market analysis is furthermore one that protects a copyright holder’s ability to fragment the general market for a work into myriad, highly specific markets.36 Such a trend favors copyright holders with significant economic power while isolating the interests of the public and entire categories of artists. For filmmakers, it is a trend that makes licensing copyrighted works not only an uncertain task, but an ever more expensive one.

The Significance of a Lack of Legal Knowledge

Along with the negative effects of current copyright duration and fair use, a final legal issue affecting today’s no-budget filmmakers—particularly in the realm of new media—is many filmmakers’ incomplete or inaccurate understanding of copyright law. For the filmmaker working without the aid of legal counsel, widespread misconceptions about what is sufficient to prevent copyright infringement37 or a complete unawareness of important details required to stay within the bounds of copyright38 can lead to unexpected liability.

Casual new media producers in particular often fall prey to the “clickwrap” phenomenon when setting up channels on video hosting sites.39 There is also a fair level of tolerance at the moment for song covers, “fanvids,”40 and similar new media works sampling copyrighted material.41 Finally, the substantial legal risks of infringing copyright in new media productions have largely shifted from artists to hosting sites.42 This has led many casual new media content creators to believe that no formal permissions for sampled works are required so long as their work is not for commercial gain.43 However, as more powerful copyright holders shift their attention to Internet infringement, video hosting sites fearing the consequences of litigation44 are beginning to put more effort into complying with the letter of current copyright law.45 Infringing videos on hosting sites can be muted or taken offline, and offending uploaders can have their video channels suspended after too many infractions.46

This current reality has a twofold effect. First, it increases casual content creators’ ambivalence toward their legal duties, as the risk of having one’s video muted or taken offline47 does not outweigh the inconvenience of contacting a copyright holder, making a license request, waiting for a response, and very likely paying money for a passion project set to make no money itself. Second, casual content creators’ production risks a chilling effect directly correlated to the rigor with which video hosting sites comply with copyright law. The sole end of casual new media producers is online distribution of their work. As hosting sites take more action against infringing videos, casual producers grow less inclined to put effort into making new works that will only be muted or taken offline.

Conclusion

The issues facing today’s typical no-budget filmmaker can shed light on important problems plaguing copyright law in general in the present day. A purported effort to support the rights of artists by extending the reach of copyright protection has led to adverse effects on artists themselves. Should the law favor the attitude that copyright holders’ interest in preserving the largest possible market—direct and indirect—for their work trumps all,48 even when this attitude begins to run counter to the principles on which copyright stands?49

Congress and the courts would do well to consider the benefits of tipping the balance back toward broader support for the proliferation of art and information. Reconsidering fair use and the weight currently granted to each of the fair use factors50 is a good place to begin. Specifically, promise may lie in reconsidering the dispositive nature of the fair use factor of commerciality.51 For filmmakers, another helpful measure could be standardizing synchronization and master recording license fees for applicable copyrighted works.52 Locking these fees into a realistic range would not only fight the risk of deincentivizing the currently booming number of no-budget artists from creating new works, it also would facilitate and likely increase compliance with copyright law.

In the Internet Age, technology makes it easier than ever to create and distribute one’s creations. It is time for copyright law to self-assess accordingly, and to move out of the 20th century and into the 21st.

Endnotes

1. YouTube now has “[t]ens of millions” of active (that is, content-generating) channels. Frequently Asked Questions, YouTube, http://www.youtube.com/t/faq (last visited Nov. 14, 2012).

2. Amazon.com, http://www.amazon.com (search for “Canon Vixia HF R200 and R300” for range of prices) (last visited Nov. 14, 2012).

3. Amazon.com, http://www.amazon.com (search for “Audio-Technica ATR-3350 Lavalier Omnidirectional Condenser Microphone”) (last visited Nov. 14, 2012).

4. “Prosumer” is a portmanteau of “professional” and “consumer.” In this case, it serves as a descriptive term for cameras and other film equipment aimed at amateur filmmakers seeking to produce professional-grade work.

5. The iPhone 4S also shoots 1080p HD video. iPhone 4S Tech Specs, Apple.com, http://www.apple.com/iphone/specs.html.

6. Unless otherwise noted, “filmmaking” will now refer to all film, television, new media, and other audiovisual productions.

7. See supra note 1.

8. For filmmakers without lawyers, a Google search can turn up hundreds of purportedly reliable guides to copyright law. It is up to the searcher to find the most complete and correct information, however, and the risk of relying on incomplete or incorrect information is high.

9. Patterned on the British Statute of Anne, the Copyright Act of 1790 covered only books, maps, and charts. Copyright was extended to musical compositions (in printed form only, excluding protection of public performances) in 1831. The Copyright Act of 1976 overhauled U.S. copyright entirely, extending protection to all literary, musical, and dramatic works; choreography and pantomime; pictorial, graphic, and sculptural works; motion pictures and all audiovisual works; and sound recordings. Architectural works were added in 1990, and now computer code and software are also covered. All “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device,” 17 U.S.C. § 102(a) (1976), are protected today.

10. Via the Copyright Act of 1909, the Copyright Act of 1976, and the Copyright Term Extension Act of 1998.

11. 17 U.S.C. §§ 302(a), (c); 303(a); 304(a), (b) (1998).

12. Eldred v. Ashcroft, 537 U.S. 186, 196 (2003).

13. In light of the pattern of copyright extensions between 1909 and 1998. See supra note 10.

14. The CTEA often is referred to as “The Mickey Mouse Protection Act.”

15. U.S. Const. art. I, § 8, cl. 8 (“The Congress shall have Power . . . [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (emphasis added)).

16. Eldred, 537 U.S. at 196.

17. Id. at 208.

18. This situation illustrates how authors themselves, though they directly benefit from copyright, also have a strong interest in ensuring that copyrighted works enter the public domain in a timely fashion.

19. Personal experience of the author. The lowest fee was $500, and on the same facts other major studios charged up to $750.

20. This result would countermand the very purpose of copyright. See supra note 15.

21. The proliferation of “fanvids” (see infra note 40) and song covers online are two immediate examples.

22. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).

23. During the making of the 2005 documentary Mad Hot Ballroom, producer Amy Sewell was asked to pay $10,000 for use of six seconds of the song “Gonna Fly Now” from the movie Rocky, which appeared in the form of a ringtone on a cell phone that went off in one of the documentary’s scenes. Sewell was inclined to use the footage without permission, relying on fair use, but her lawyer advised against it stating, “for your first film, you don’t have enough money to fight the music industry.” Nancy Ramsey, The Hidden Cost of Documentaries, N.Y. Times (Oct. 16, 2005), http://www.nytimes.com/2005/10/16/movies/16rams.html.

24. 17 U.S.C. § 107 (1976) (“In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”).

25. Campbell, 510 U.S. at 584.

26. AUSOC Ctr. for Soc. Media, Documentary Filmmakers’ Statement of Best Practices in Fair Use (2005), available at http://www.centerforsocialmedia.org/sites/default/files/fair_use_final.pdf.

27. Ringgold v. Black Entm’t Television, Inc., 126 F.3d 70, 76 (2d Cir. 1997).

28. Id. at 73, 76.

29. Id. at 81–82.

30. Id. at 79.

31. Id. at 81.

32. Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006) (holding use of a photograph in a collage was fair where the collage’s artist detailed his artistic reasons for the photograph’s inclusion, and the photographer testified that she had never licensed nor intended to license the photograph).

33. Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006) (holding use of copyrighted photographs in a nonfiction book was transformative and therefore fair where the photographs illustrated historical events, were reduced in size, and were arranged creatively in combination with the written text).

34. AUSOC, supra note 26.

35. U.S. Const. art. I, § 8, cl. 8.

36. The “proper” market in Ringgold was not even the market for licensing Church Picnic to filmmakers, but the market for licensing Church Picnic as a set dressing. Ringgold, 126 F.3d at 79.

37. For example, the widespread use of artist-drafted “disclaimers” copied into video information boxes on sites such as YouTube and Vimeo, noting that a work is noncommercial and does not intend to infringe.

38. For example, the fact that any use of a song recording in a film or video requires a mechanical license and a synchronization license.

39. A nonprofessional interest in new media production coupled with a strong desire to distribute work online leads many casual content creators to forgo a careful reading of the terms of service of sites such as YouTube, which lay out key details about licensing requirements and copyright.

40. A “fanvid” is defined as: “1) Amateur/fan-produced versions/episodes of movies or television shows. 2) Music videos produced by intercutting clips of a movie or television show set to a particular song.” Fanvid, Urban Dictionary (Dec. 29, 2004), http://www.urbandictionary.com/define.php?term=fanvid.

41. Some recent examples are: Stephen Colbert’s “Green Screen Challenge” for his show The Colbert Report, Colbert Nation, http://www.colbertnation.com/video/tags/Green%2BScreen%2BChallenge (last visited Nov. 14, 2012); NBC’s Community, directly acknowledging and parodying the phenomenon of YouTube fanvids in the episode “Paradigms of Human Memory” (broadcast Apr. 21, 2011); and record label Third Man Records compiling and posting online a collage of YouTube covers of Jack White’s song “Love Interruption,” Third Man Records, http://thirdmanrecords.com/news/view/love-interruption-interruption (last visited Nov. 14, 2012).

42. See Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010).

43. See supra note 37.

44. Smaller video hosting sites and startup companies can be devastated by copyright litigation, even when the litigation resolves in the company’s favor (e.g., video hosting site Veoh, which filed for bankruptcy in 2010 as a result of an infringement case). Eliot Van Buskirk, Veoh Files for Bankruptcy after Fending Off Infringement Charges, Wired (Feb. 12, 2010), http://www.wired.com/business/2010/02/veoh-files-for-bankruptcy-after-fending-off-infringement-charges/.

45. For example, YouTube has developed its “Content Verification Program” and “Content ID” to help copyright holders find infringing videos in greater numbers and with greater ease. Resources for Content Owners, YouTube, http://www.youtube.com/t/ copyright_owners (last visited Nov. 14, 2012).

46. Resources for YouTube Users, YouTube, http://www.youtube.com/t/ copyright_users (last visited Nov. 14, 2012).

47. See Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 512, 1201–05, 1301–32; 28 U.S.C. § 4001 (1998).

48. Such attitude is clearly evidenced in the proposed Stop Online Piracy (SOPA) and Protect IP (PIPA) Acts. In a discussion on the finer points of both laws, Professors Mark Lemley, David S. Levine, and David G. Post noted that under SOPA particularly: “IP rights holders can proceed vigilante-style against allegedly offending sites [sites linking to or including works that the holders claim violate their copyrights], without any court hearing or any judicial intervention or oversight whatsoever. . . . [All that is required is] notice delivered [to an offending site] by the rights holder, which no neutral third party has even looked at, let alone adjudicated on the merits.” Mark Lemley, David S. Levine & David G. Post, Don’t Break the Internet, 64 Stan. L. Rev. Online 34 (Dec. 19, 2011), http://www.stanfordlawreview.org/online/dont-break-internet.

49. See supra note 15.

50. See supra notes 24–25.

51. This would put the presumption in favor of finding fair use in cases where copyrighted materials are included in works made for no monetary gain.

52. In a manner comparable to the already existing standardized fees for compulsory mechanical music licenses. U.S. Copyright Office, Mechanical License Royalty Rates (Jan. 2010), available at http://www.copyright.gov/carp/m200a.pdf.