Fair Use for Filmmakers with Jack Lerner Esq.

Fair Use strategies and tips for filmmakers.To learn more about From the Heart Productions please visit www.FromtheHeartProductions.com.

Transcript

SPEAKER_04 0:00

Love Top Radio.

SPEAKER_03 0:13

Hi and welcome to the Art of Film Funding. I'm your co-host, Claire Papan. Along with Carol Dean, author of the best-selling book, The Art of Film Funding. Carol is also the founder and president of From the Heart Productions and the host of this show. Today we are joined by our guest host, filmmaker Heather Lenz. She's a filmmaker best known for Kusama Infinity, a feature-length documentary about artist Yayoi Kusama that premiered at the Sundance Film Festival and received international distribution. Jack Lerner is a clinical professor of law at the UC Irvine School of Law and the Director of the UCI Intellectual Property, Arts and Technology Clinic. Since 2008, Professor Lerner has been the executive editor of the award-winning legal guide, Internet Law and Practice in California. Professor Lerner's work focuses on problems at the intersection of law and technology, particularly how technology, law, and policy affect innovation and freedom of expression. And it's great to have both of you with us today. Thank you.

SPEAKER_04 1:39

Thank you so much, Claire, for the lovely introduction. And Jack, we're thrilled to have you. We've worked together before, so I know you're an absolute wealth of information. So I guess with that being said, let's dive in. Could you just please tell us a little bit about what fair use means?

SPEAKER_01 1:58

Thank you, and it's wonderful to be here. Fair use is okay, so it's a doctrine of copyright, and it's essentially the right to use copyrighted work without permission or payment when done for certain socially valuable uses, like criticism and commentary, scholarly research, news reporting, and things like that. And so this is a limitation on the rights that copyright holders have. But it's so in that way it's kind of a it's kind of a sidebar to the main to the main course of copyright. But it's actually something that in a way has come to drive the bus itself and in a way has become extremely important. And the reason for that is because copyright law itself is is very, very broad, and rights holders have enormous rights. So when you forward an email, uh if that contains any original expression at all, a turn of phrase, anything besides simple recitation of facts, that's copyrighted. And if you're forwarding it without permission, uh then then arguably you've committed copyright infringement. But that kind of thing would be considered fair use. Um or uh if you if you anytime you do a movie review, anytime you quote something, any meme, uh all those things are copyrighted, and copyright is very broad. So fair use allows copyright essentially to coexist with the First Amendment. Uh if you didn't have fair use, then you'd have to get permission anytime you wanted to use or well, not use, but copyright uh copy or foreword or make a, you know, make something out of uh a copyrighted work. Um and if you couldn't get permission, then copyright would be form would become a form of private censorship. And so that has um so fair use was created by the courts in the 1850s and it was enshrined by Congress into our copyright statutes, the the the and um in 1976 when it went to effect in 1978. So fair use has been around almost as long as copyright, not quite, um, but it's really a great way to think of it is a First Amendment safety valve that allows copyright to coexist with the First Amendment.

SPEAKER_04 4:20

Well, terrific. That that's very helpful information. And could you talk a little bit about how fair use helps documentary filmmakers? And in fact, these days I know some fiction filmmakers are also making um use of fair use in their movies. So if you could talk a little bit about that, that'd be great.

SPEAKER_01 4:38

Of course, of course. And this goes back to the work that uh my clinic, the UCI Intellectual Property, Arts and Technology Clinic, which I direct, it's not my clinic, but I direct it, um, uh uh did working with with you uh on the enormously informative and inspiring film Kusama Kusama Infinity. Um and what we had there was the inability to get permission, uh the inability to afford uh licensing, um, and ultimately you know we had to make fair use of numerous copyrighted materials. And this happens a lot in documentary filmmaking. Let's say my favorite example I I uh like to think about is what if I wanted to make a film about gangster movies and show that uh that you know gangster movies have actually influenced um real life criminals and and popular culture, and I wanted to examine that. And let's say I wanted to show the end of The Godfather. Um, and I wanted to say, at the end of The Godfather, there's a very important scene um where they kiss the Godfather's ring, and that never really happened in real life, and uh it started to happen after The Godfather. Um fair use would allow me to use that short excerpt of The Godfather enough to show uh you know um the the scene where they kiss they kiss the ring of the Godfather. Um it wouldn't necessarily allow me to show you know that entire scene or that entire or the last 10 minutes of the film, but it would allow me to show enough to make to make my point hurt. And um if I wasn't able to do that, you know, I maybe I could go to Paramount Pictures, but they might say, Well, yeah, you know, we'll we'll let you use it if you give us a million dollars. Um well I don't have a million dollars. Or maybe they would simply say, No, we don't like your film. We don't like what you're saying about us uh and about uh and about this this film, so we are just simply not going to allow it. And that's why fair use exists. Um and uh and so so this happens all the time in documentary filmmaking. You either can't get permission or uh or you're if you're criticizing or commenting on the work or you're using it to demonstrate or illustrate a point, then if you use only what's necessary to do that, you will most likely be in good shape uh and able to use that work without permission or payment. Now it's it's complicated and and you probably want to get in touch with a lawyer and ultimately to get to get insurance for fair use, which most filmmakers need eventually if once they get to festivals and distribution uh deals and things like that, they are going to want to get insurance. For that, they'll need a letter from an attorney.

SPEAKER_04 7:36

Yeah, I think that's a really important point because as you say, the the rules of fair use are complicated. Um, but even if you uh as a filmmaker um attempt to get to speed on them, you are not able to actually be the one to say, oh, I I decided it's fair use because I I think it qualifies. You really need a professional like yourself to sign off on that. And so um again, there there are many rules and it's nuanced, but um, there are three key points that people can kind of um think about um with fair use, and I just wonder if you want to talk a little bit about those, you know, including just showing um you know as much of the asset as you need to make your point.

SPEAKER_01 8:25

Absolutely. So um this comes this this goes back in 1857, I believe. In the 1850s, uh Supreme Court j uh Supreme Court Justice wrote an opinion called Folsom vs. March, which was March, which was about uh a book of of George Washington's letters. Uh basically there was a nine-volume uh book of his letters, and then somebody created a one-volume abridged version of his letters, and that uh and the court said that's that's not fair use, but in the process it invented fair use. And there it came up with four basic factors. Um and those four factors, and these, and you know, 120 some years later, Congress wrote the factors into the law, but they were already part of the law uh made by the courts. And the four factors are first, how is the work being used? Is it being used for criticism or commentary? Is it being used for scholarly purposes? Um the second one is how creative is the work? If it's a highly creative work, um then it's gonna be less less likely to be fair use. Um, how much of the work did you use? Did you use the whole thing or part of it? And finally, how does it affect the market for the work, right? If it uh if if it cannibalizes the existing market, that's a problem. Um back to that first factor, the purpose and character of the use, uh in 1994 the Supreme Court articulated a really important doctrine called transformative use. And the idea there is are you adding with this use, are you adding new meaning or expression? Um, and if so, the court said that's transformative use. You're transforming the work itself, you're cutting it, you're you're you're remixing it, you're adding it to a collage or whatever, um, or in our case, a montage for filmmakers, um, or uh are you um you know, or are you changing the purpose for which it's used? Are you repurposing it and thereby creating something new with that? Um and this was actually just reaffirmed last week in a case called Google versus Oracle by the Supreme Court. So this is a very live and a very important doctrine. Um but trans if if it's found to be transformative use, then you have a very strong chance of it being fair use. Um and again, this is just reaffirmed by reaffirmed by the Supreme Court. Uh and these are the these are the four factors that you'll find in the law. Um and uh of course, documentary filmmakers, when you make, when you when you, you know, going back to my example of the Godfather, if I'm gonna show that piece, that's that's clearly adding something new because it's adding all this criticism and commentary. It's the same as if I were gonna do a literary analysis of a poem or a literary analysis of a of a story. Uh and and these are kind of quintessential fair uses. So documentary filmmakers have a very strong um case for fair use when they do that. And there's actually been three cases uh uh that in the last in the last three years dealing with documentary films where that has been reaffirmed by various federal courts. Now, going back to the test that we use, we use a test in addition to looking at the four factors holistically and looking at the case law, we also look at um uh uh three rules of thumb that are essentially derived from those factors. And these rules of thumb were articulated by Michael Donaldson, um the head of Donaldson and Caliph, uh, which is a firm that a lot of documentary filmmakers use in uh Beverly Hills, California. Um and essentially what he said was okay, let's look, let's let's let's ask these three questions. The first question, and the most important question is, are you using it to make a point to illustrate or demonstrate a point? Um and so you know, in the Godfather, I'm making a point about the Godfather and I'm using that. Um and in in my in this same hypothetical example, I'm also directly criticizing and commenting on the Godfather. So that's a slam dunk fair use, as we as we tell our clients. Uh the second one is are you using only what's reasonably in service at that point? Now it doesn't have to be down to the microsecond or the millisecond of you know, only to kiss the ring part. But but again, you know, if I show that entire last five minutes with a godfather, you know, spoiler alert is pretty important. Um the last five minutes, that would not be acceptable. But if I can show, you know, I show maybe a few seconds before or a few seconds after that point so that you understand so that you understand the point. Um and then the third question is what I sometimes call the sleepy judge rule, and that is, is the connection between the point you're making and the in the work and the use of the work uh readily apparent to the average viewer, right? So sometimes we get people coming into the office saying, um uh, well, we want to use this uh this this clip of a TV show, and we'll say, and we'll say to our client, we don't see the connection between an argument you're making or a point you're making and uh and this work that you're using. And the filmmaker will say, Well, Jack, that's because um we're using it because this is what the person that we're profiling here, you know, he watched that before work every single day. That kept him going. You know, that was so important to his whole entire uh uh reason for living. And this this was you know key to his entire you know, entire approach to life, and and that was like a big deal for him. Okay, you know, you have to say that, or else the the reader and of course the court is not gonna know what you're what you're referring to and why that's relevant. And so sometimes we say, you know, it does need to be more relevant and does need to be more more directly more directly readily apparent, I should say, as to why you're using it. Um and this goes to something that we see happening sometimes, both good and bad. The good is that sometimes filmmakers do come to us and say, you know what, that advice to make it to make it more suitable for fair use and to make it clear what was going on there actually improved the film. Um and it's it's clearer now, it makes more sense, and it's actually a better film because we had to do it this way and be more direct. At the same time, sometimes that is constraining. Often it's constraining, right? And I'll give you an example. Let's say we had someone come in and they said we want to use a very a song that was played constantly on the radio for many years from the 1960s that's relevant to protest in the 60s. And we're doing a film about protest in the 60s, and we want to use this film. We looked at how they wanted to do it, we gave them a few tips on how to make it make it more slam dunk fair use. They used it, the film was released, it's fair use, rock and roll. Wonderful. Um, and this is a major work that would have cost tens of thousands of dollars to license if they could even get anybody to answer the phone. Right? And that's another problem, of course, for filmmakers and why we need fair use. People just don't want to answer the phone, it's not worth it to them to license to an independent filmmaker. It's not worth their time. So uh so that that was great. Now, if that filmmaker came to me and said, we want to use the we want to use this uh this same song as you know a touchstone, a leitmotif that will be used throughout the film and that we can return to as an emotional touchstone, um, that's a great filmmaking technique. That's a common filmmaking technique, but fair use would likely not allow that unless unless there's a pretty clear connection with an argument at that point in the film and uh the song, right? But if you're just using it for atmospherics and for uh and and for kind of just an emotional touchstone, then it w it wouldn't work, most likely. And that's too bad because again, it's a common, very effective filmmaking technique, a very important filmmaking technique, but fair use is just doesn't doesn't take you as far. So often m almost all filmmakers use a combination of licensing and fair use. And this is why, because if you're only making fair use, it's gonna be really constraining and you're probably gonna need to have mostly original footage.

SPEAKER_04 17:40

Yeah, that makes sense. I know during editing, uh sometimes editors will complain um and object to basically showing showing the same thing that someone's talking about. Um but uh that's that's fair use. So um as we mentioned earlier, you did help me with my documentary about Kusama, and I was um hoping we could cite a few examples from the film. An obvious one that comes to mind involves Warhol's art. Uh could you uh talk a little bit about that section of the film?

SPEAKER_01 18:16

Absolutely, and and this was a you know, some of the some of the advice that we gave um and that we give to to all our filmmakers is is a little bit more, we have to be pretty careful about, right? And we have to really think about what's the argument, is it clear, and so on and so forth. And um and there might be a lot of internal deliberation before we before we give the advice to the filmmaker, right? And so my my students and I and my colleagues in the clinic, Susan Seeger, Christina Gagner, we might talk about these things and um um quite a bit. But there were some that were pretty slam dunk, as I like to say, uh in Kusama. There were actually a lot that were. And I'll talk about the Warhol example and another another really good example. So uh in the in the Andy Warhol, um so what happened was Kusama created an installation. Um she was obsessed with the the phallus, the phallic form. And so she had a number of artworks that involved uh stuffed fabric in the shape of a phallus. And uh and one of them was a boat full of those shapes, and it was placed in a room that had repetitive pictures of the same form all over the room. Am I describing it correctly, Heather?

SPEAKER_04 19:46

Well, yeah, people do often uh say these are are uh so it's like stuffed appendages covering a boat, and and just for anyone who doesn't know her art, I mean, frankly, you could say they look a little like yams or potatoes, some of them. They're not like uh super blatant, but people do often describe them as hulic. So yes, she took photos of the boat, and then the photos of the boat were on the wall, and I'll let you take it from here.

SPEAKER_01 20:12

Yeah, and so right, it's it's not it's an interpretation to call them phalluses because they're not necessarily that, but um, but there's there's a lot of evidence for that as as part of her idea. But again, uh, and and this is one fun thing about doing fair use work for the lawyers out there, uh, because we get to talk about the film with the filmmaker. However, we always make sure to keep our own opinions. We don't give artistic notes unless unless we're directly asked, which which thankfully we're not because it probably wouldn't be good for the film. But um but that is that is key. We we try to we try to keep it to helping you make fair use and helping you realize your vision. But anyway, um what happened was Warhol came to this exhibition, and then just a few months later, uh he came out with a similar exhibition which had photos of cows um on the walls repeated uh all over um all over the installation. And it was clearly, we think, clearly inspired, and this is the argument that you made, Heather, clearly in the in the film, clearly inspired by Kusama's earlier installation. And um and later in the film, not not too much later in the film, we had a couple of other examples where uh where Kusama um had used, for example, a room full of mirrors, and then another artist created a room full of mirrors uh um not even a year later, if I recall correctly. And um a lot of examples of that. Another good example uh of fair use is uh Kusama. Um this is back in the 1960s when she was Um when she was not as well known, got a very strong review from a prominent art critic. And if I recall correctly, we showed an image of the of the news story that that came from. And that's a good example of fair use as well. It's not, it's not, it's it's a it's also a slam dunk, but I wouldn't say it's like a sh slam dunk that breaks the backboard like the Warhol one was, right? That's like a very, very uh that's the strongest very use you could possibly have when you're saying this is what happened, she did this, and now look over here, he did that, right? Um and that's just very, very clear. But this one is also pretty clear because it's it's saying, okay, an article was written in the 1960s about Kusama. This was a historical event, um, and this was an event with very important um implications for Kusama's career and ultimately her legacy. And in order to make that point, you have to show what the work looked like. Now we didn't reproduce the work, we didn't post it on the web, um, but there's an image of that article so that we know what the filmmaker is talking about. And that's another good example. And I think, yeah, I don't remember the name of the critic, we don't have to get into that, but uh but that's the uh that's the the overall approach. And um we felt very strong strong that that was that that was fair use and and defensible, and um ultimately the film got insured and went to Sundance and had a wonderful theatrical run.

SPEAKER_04 23:36

Yeah, and I must say us going to Sundance was so contingent on your hard work, and I'm sure you remember, I haven't forgotten that you you practically pulled an all-nighter with us, um myself and producer Karen Johnson, who I remember was on the phone with you quite late into the wee morning hours um discussing some of these points. And so you were a real trooper, and we appreciate everything you did for us because obviously we we couldn't have screened the film without you know your help and uh you know getting the ENO insurance we needed. So um, so yeah, so it was my great pleasure. Oh, that's too kind of you. Um and uh are there any other uh you know you've talked a little bit about The Godfather. Are there any other uh documentaries that have uh good examples that you'd like to to mention?

SPEAKER_01 24:31

Oh gosh, I mean, you know, it's interesting because people made fair use in documentary, um, or they made they sort of made un like lots of unlicensed uses for many years. In the 50s, 60s, 70s, eight into the 80s, people didn't really license every single little thing. Um, and then a clearance culture started to take over in the 80s and sort of ossified into the 90s to the point that if by the end of the 1990s, you couldn't get on um on TV or get a distribution deal if you didn't have ENO insurance. And EL insurance, errors and emissions insurance, something, or also called media liability insurance, something every filmmaker has to get at some point once once their film gets to a certain stage in its life cycle. Um but by by the end of the the 90s, you know, if you didn't have EO, you couldn't get take your film past a certain level, um, probably not even to a film festival or maybe only to the festival level. Um, and then it would run into a brick wall if you wanted to make fair use, because the ENO application said uh had is everything in this film licensed? And this was really causing problems for filmmakers because you know, any filmmakers listening, you know how hard it is to get rights holders on the phone, to get them to work with you, to get them to give you a reasonable quote. And you know, there might be lots of reasons why people wouldn't want to do that. Um and and rights holders, maybe they don't pick up the phone. Maybe they just say, no, we're only licensing to one person, we don't care. No, we don't like your film. That happens all the time. So this was really starting to be a huge issue for filmmakers. It was and and it was causing great problems with filmmaking. In 2004, some scholars at American University uh worked closely with the documentary filmmaking community to create a report called Untold Stories, which showed just how difficult it was to make a film when you have to get everything licensed. And you know, fair use law had not had not gotten worse, fair use law had not uh had not eroded in any way, but in practice it was almost impossible to make fair use as a filmmaker. So in 2005, these same scholars from American University, uh, plus the International Documentary Association, Film Independent, and a bunch of other major organizations got together and um created the documentary filmmaker statement of best practices and fair use. And this was four practices uh that were considered fair use. Um and this is the community saying this is what we consider to be fair use. And again, the community was saying we're rights holders, we recognize that our work might this our work might be subject to this same kind of reuse, and we do see that sometimes. Um and so we have to be comfortable with it, and what does the community feel is comfortable? And the the they came up with four best practices which were then vetted by major documentary film lawyers as well as as well as academics. There was a uh an advisory board, and there were two lawyers in the room while while the the filmmakers were deliberating um and and taking notes. The four best practices are the first one, and you you know you most of these we've talked about, but I'll go through them because this is another uh rubric that we use to look at whether something's fair use. So the first one is are you directly commenting on the work? We've talked about that one, that's that's easy. Are you using the work to illustrate a point? And my favorite example here is let's say um let's say you're doing a film about misogyny in advertising and about the use of images of women and objectification of women in advertising. And there's actually a great film called Killing Us Softly that that that discusses this very topic. And so there you might say, look, there are many um advertisements that use the image of a woman's body to sell a product that doesn't have anything to do with women's bodies. Um and you know, here are four examples. That's an example of this second practice, and that's an example of something that would be a very, very strong fair use case. The third category is incidental use. Right? So I teach at the University of California Irvine School of Law. And let's say one of my clients wants to do a documentary about the the life in the dorms in uh at UCI. Now, fun fact, the dorms are actually named at uh Middle-earth. Some of the dorms are named Middle Earth because uh you know, 50 years ago, the um this the school asked the students what they wanted to name their dorms, and they were all Lord of the Rings fans, so they said, let's call it Middle Earth. So to this day, one of the biggest dorm uh communities uh in you know on campus at UCI is called Middle Earth. So let's say I want to go to Middle Earth and I want to do a documentary about life in the dorms, and I go in there and somebody has a Beyoncé poster on their wall. Well, that's copyrighted. Um but if I'm not staging that room and and deciding, okay, how are we going to decorate it? Let's put up a Beyonce poster. If that Beyonce poster is actually there in real life, then I can film that student even if the poster is there in the background, and I don't have to blur it out or worry about copyright. And and you know, the the rationale here is pretty simple. You shouldn't have to alter reality in order to portray reality, right? So if somebody is surrounded by Beyoncé posters or, you know, for me it'd probably be more like radio head, uh, then that's okay as long as you didn't stage the room and you know decide what to hang on the wall and all that kind of stuff. And then the fourth category is essentially archival use. If you have a historical sequence, um you can use uh archival footage to illustrate that sequence and to show what kinds of events were going on. Um and this one is a little bit more limited. Um it does depend on what you're saying directly, um, and it also uh um it does depend on what you're saying directly, and um usually a lot of archival footage is available for licensing, um, and and there's some that's in the public domain, so you know it's not something that is just free to use whenever. But um if you're doing, if you're you know, a good example is let's say you're doing, and this is you know kind of a typical example, but let's say um Bob Dylan, I'm gonna I'm gonna talk about the early career of Bob Dylan. Say Bob Dylan got his start in the folk music movement, and that was closely related to the civil rights movement, um, and that was a in the the music of of the folk of the folk movement was was you know kind of the soundtrack of the early civil rights movement, and let's say I wanted to show civil rights footage to make that point. Um, this fourth fourth practice that was articulated back in 2005 in the statement of best practices and fair use um is uh would say yes, you can do that. You want to use with certain limitations, you know, if you know you want to try to license it, um, but also you want to try to use um works from different many different rights holders and kind of a montage or a collage as opposed to just um just um you know using everything from one individual source. So those are the four factors. Now, why am I telling you all this? Because number one, lawyers still use these and they're still very valuable tools for filmmakers. So anybody could Google documentary filmmaker statement of best practices and fair use, and it's readily available, it's a 12-page uh uh brochure essentially that's available online and is very accessible and easy for any filmmaker to read, and that's a very useful rule of thumb for filmmakers to follow. Um so we we look at that too. Why am I getting into this, Heather? The answer is because in 2005 this came out. In 2006, the insurers said, you know what? This has endorsement from the community, this has been vetted by lawyers, so we are going to start underwriting fair use and ensuring fair use the same way that we insured material that you cleared. In other words, if you get a letter from an attorney, we will issue what's called a fair use endorsement, and then all the fair use clips that you've used, we will defend you if you get sued, we will pay your damages if you lose that suit, subject, of course, to a big deductible. Um, just the same way we would for material that you cleared and got permission for. Um, and that unleashed a fountain of creativity based on fair use to the point where it is routinely done by filmmakers to this day. You know, when you have a quarter million dollar budget or a hundred thousand dollar budget, you know, it's not going to cost you twenty-five thousand dollars to get the fair use guidance. It might cost more like uh a few thousand. Um now that's obviously not chunk change, but that definitely helps that you know when you have when you get to a certain budget size, you can you can put that into your budget and and make robust fair use, and you can do it safely, reliably, and most importantly, appropriately. And you can do it in a way that rights holders, especially large studios, are generally not going to complain about. They're gonna look at it if they see it, and they're gonna say, you know what, we get it. And this happens over and over to the point where we use major studio works all the time. Um, and again, the key is are you doing it safely, responsibly, and and and appropriately? And if you are, and it's not a sort of a willy-nilly use, um, then you know you're gonna be able to make fair use and not have to worry about it. And sleep easy, and it's not gonna be uh and it's not gonna be something that ends up messing up your film.

SPEAKER_04 34:59

Well, great. Well, we have about um, let's see, uh 10 to 15 minutes left. I'm gonna attempt to ask you three more questions during that time period. We'll see how far we get. So um you've been just great explaining um fair use and how to make use of it for a movie. So a question that we discussed a lot that I think is important is if a filmmaker follows the use of fair use and everything's approved for use in their film, does that mean these materials in the film can be excerpted and used for things like promotional trailers, movie posters, basically anything to promote the film?

SPEAKER_01 35:41

So the answer is sometimes. And I hate to be that guy that you know uh lawyers love to say it depends. But the answer is this you can make fair use in a trailer. You can make fair use in a sizzle reel, but it's not the same analysis. It needs to be even more slam dunk and even more straightforward in order to do it. And so when we write our letters to our filmmakers after we've assessed their film, we say, if you have promotional use, please come back and run those by us because that is not going to be the same analysis. And so often we'll write a separate letter or we'll do a separate analysis for the trailer or the promotional wheel. Um, but that's really important to keep in mind, you know, because the you know, the argument is this, and there's case law on this, you know, of where fair use is being used in an advertisement to say this is what the program is gonna be about, right? So if I say this is what I'm going to uh going to explain, you know, this is what the film is gonna tell you about, this is what the film is gonna do, that is a fair use. But it's different than sort of actually providing the commentary in the work. And um, so you know, I'm not necessarily making that commentary inside the trailer, but what the trailer is doing is telling the um the audience, you know, look, I don't want you to watch this because it's really cool and funny. I want you to uh see this piece of piece of copyrighted material because that's what the film is going to be talking about. And there there is a fair use argument for that, and it is done regularly, um, but but it is a little more tricky, and you do have to be more careful. And the key there is just do a separate analysis.

SPEAKER_04 37:27

Yeah, one thing I know you explained to us was that in a trailer, obviously it's fast-paced and you're editing more, it's shorter, so you're not taking a whole scene from the the movie that's already been approved and just plopping it in. It's it's a whole new work that you're creating, even though it does use the same materials.

SPEAKER_01 37:47

That's right. And as and as we all know, tr and as we all know, making a trailer is an art in and of itself. That's it's that's its own skill.

SPEAKER_04 37:55

That definitely is, that's for sure. So the next thing I wanted to ask you about is orphan works, um, which at some point I think uh you've touched on a little, but if you could just define what an orphan work is, and then I think it'll be evident why fair use is so helpful when it comes to these things.

SPEAKER_01 38:13

Absolutely. So an orphan work is is a work that is clearly still copyrighted, but you can't find the copyright holder. Now, anybody who's tried to do clearance has probably run into this because it is pretty common. Um and it's unfortunately it goes back to when when Congress changed the law in 1976. Yes, they enshrined court court made fair use law into the statute, into the written, the law of you know, the the laws that are publ that are passed by Congress. But the another thing it did was it made copyright protection automatic. So it used to be if you didn't register your if you didn't uh register or renew your work, then after 28 years it would go into the public domain. And guess what? The vast majority of of works did go into the public domain for that reason. That all changed in 1978. Now, as soon as you write it down, it's copyrighted for your life plus uh plus 70 years, or if you're a movie studio or a corporation for 95 years, uh if it's published and and even longer if it's not published. Um and so what this did was it basically took um millions and millions of works and put them, took them out of the public domain and put them under copyright protection. And guess what? For a lot of these works you can't find the people, you know, think about a book that was published in the 1930s, it's still under copyright to this day. The publisher's been gone for a long time, the the author's been dead for 50 years, but it's still under copyright. And if you you're unable to find the heirs or you're unable to find whoever the publishing companies you know owns the assets of that publishing company, maybe no one does. And so what do you do? And there we do sometimes work with filmmakers uh to ensure that it's truly an orphan work, and sometimes you can get those insured. So my advice there is you know, several pieces of advice. The first one is um if if you can't find the rights holder, don't give up hope. Um, do look hard and leave no stone unturned. That's the first first piece of advice. The second piece of advice is keep records of your search. Um, you want to be able to show uh your lawyer that you have really left no stone unturned. And we had this situation where we had footage um with a film from that dealt with um that dealt with a historical event. They went to the place where the event took place. It was they they really just spent uh ultimately they spent the process took over a year and they were able to get the film out even though um they did not have permission for this this particular footage that they needed to show the film, and it got insured. And so we will work with the insurance companies, but it really helps to have those records and know, okay, they really have left no stone unturned. Look at all these different people they called, and you know, and and sometimes you know you'll even get, you know, you'll say, Well, is this from ABC? It looks like it might be from ABC, and ABC will write and say, No, it's not from it's not from us. You know, we don't we don't have any claim to that. And then and then that's an additional degree of security. So don't give up hope. Uh talk to your attorneys um and uh and keep good records.

SPEAKER_04 41:40

Yeah, I think this is an important point because I know sometimes people will say, Well, I couldn't find the rights holder, and as you know, this happened a lot on the Kazama film. And so they feel that because they can't find them, that they can just use the work however they want. But in fact, to use these orphan works, we had to follow the rules of fair use. That that was um the option that that worked out. So we have about 10 minutes, and I'm gonna um give you the option of either um telling us anything interesting about fair use that I haven't asked you about that you want to tell us about, or I also know that you and your students have recently been reading about all the fair use cases from the past couple of years, and if there's anything that you learned um that you think is very interesting that you'd like to share, you you could do that.

SPEAKER_01 42:31

I'd be happy to. You know, I've been um specializing in fair use within our practice working with documentary filmmakers for well over a decade, and um and I just think it's endlessly fascinating. You know, I think it's so important because it's directly it's it's directly related to freedom of expression. And the Supreme Court has called it essentially the the First Amendment safety valve that allows copyright to coexist with freedom of expression, and I just think that is such an important way to look at fair use. So uh when about here's this is this is kind of interesting, and I think it's important for our for for our listeners as well, Heather. We started hearing about more and more fair use opinions about a year ago. You know, it's like, oh, did you hear about this opinion out of the Second Circuit, which is New York City? Did you hear about this opinion out of uh out of uh the Central District of California, which is which is LA? And we said, no, we hadn't heard about that. Why haven't I heard about these cases? We're supposed to be fair use specialists. So my students and I about a year ago embarked on a project to read all fair use cases that had been cited in the last two years. So from 2019 all the way through February 25th of this year, we pulled every single case by any court that analyzed fair use from across the country, and we actually found 72 legal opinions. Now this was kind of shocking to us. You know, we thought maybe there would be 20 or 15, but there were actually 72 legal opinions that that discussed fair use, which is which is a shocking number to us. Uh and we started looking at these and we and we ended up creating a resource. And if you go to, I'll just say the URL quickly and people can rewind if they want to go there, go to iPat AP IPAT.law.uci.edu. That's our website of the UCI Intellectual Property Arts and Technology Clinic. And then you can go to iPat.law.uci.edu slash fair use2021. Um and if you go to that to that site, uh you can see we actually wrote up abstracts of all the cases and did a little bit of analysis too in a written report. And then we posted, and then just last earlier this week actually, we posted all of the opinions themselves online. So anyone, any practitioner or even any filmmaker if they want to can go and read these read these opinions. Um what were some of our takeaways? One of the biggest takeaways is that photographers have been filing a ton of lawsuits. So out of 72, 37 were filed by photographers were around the use of a photograph. And often the the use was by like a news organization or someone, you know, like BuzzFeed got sued and Complex got sued, which is like a kind of a uh an online news outfit. And so one thing that we've observed, both as lawyers and as people working with filmmakers, um photographers are filing a lot of lawsuits. And there are some uh organizations out there, uh legal organizations that, you know, law firms that are filing and they're sending hundreds of cease and desist letters and they're filing hundreds of cases. Um now in in one case the court actually called the lawyer um uh the case of a gentleman named Richard Lebewitz, the court actually called him a copyright troll, someone who's just sort of trying to um trying to get uh get payment just in exchange for existing essentially. Um and uh and has talked about unethical and several courts have mentioned Mr. Lebowitz's um contact conduct that the court thought was unethical in those cases. Um but regardless, what we're seeing is a lot of lawsuits from photographers. So we are very careful to make sure that when someone uses uh a photograph, particularly if it's by a professional photographer, it is a slam dunk fair use. Um and this is not something we're at we've ever been loosey-goosey about. And our clinic has a perfect track record of not getting uh not getting letters or or uh or um or pushback from rights holders, but um and that's in part because we are very careful when it comes to photos. So that's one of the big takeaways. Um since then there have been a couple of really important cases. One involved, again, a photographer who brought a lawsuit against the Andy Warhol Foundation over a use back in the uh late 70s, early 80s of a photo of prints that Lynn Goldsmith took and the Warhol and Andy Warhol used it for a series of of prints. Um, in my view, it's a pretty slammed on fair use. And that's what the trial court said. But the Second Circuit, the appellate court, just ruled that um that was not fair use, that it was essentially creating what's called a derivative work, kind of like if you did a translation or a sequel. Um I I think that's absurd. Um, and that the the opinion really is making an aesthetic judgment about how different or not different the the Andy Warhol piece was from the Lynn Goldsmith photo. But then a few weeks later, the Supreme Court issued this case, and this this actually was just last Monday, uh, called Google versus Oracle. And there the court said, you have to, you have to, when you think about the market factor um and and how and what the how to define the market, you have to look at the public interest. And um the court also said if the underlying work does not have a lot of copyrightability, that's also an issue. And so um I think that the uh Warhol Foundation is going to ask the entire Second Circuit, which is you know like 15 judges, to look at this case instead of just a panel of three judges that looked at the case um um that was uh made public on March 25th. So we'll see what happens there. But that's a that's a case that a lot of folks are watching and that I think is a pretty important one because I I do think the court really got it wrong. And you know, the court said we're not we you know, judges aren't in the business of making artistic judgments. And then they turned around and made a very, very uh direct artistic judgment of whether of of what the message and meaning of the Warhol piece was. Um and I think that they shouldn't have done it that way.

SPEAKER_04 49:06

Well, that is um very interesting. This whole conversation has been very illuminating and informative, and I hope it's gonna be helpful to the filmmakers out there who are doing work where they do need to rely on fair use for whatever reason, either because um they're using orphan works, or as you mentioned, they just can't reach the rights holder, or um cost is prohibitive, or any of the other reasons. So thank you so much for sharing all of your expertise. Uh you mentioned um at the at the beginning before we were live, you have a um a Twitter handle where you post things out. Could you tell us what that is in case people would like to follow you?

SPEAKER_01 49:47

Sure, it's just my name, Jack Lerner, J A C K L E R N E R. And you will find uh links to to our clinics work there as we as we post new work and um and lots of commentary on other things besides fair use, but I certainly talk a lot about copyright and IP issues there.

SPEAKER_04 50:08

Well, thank you. And if anyone would like to reach you, would you like to give another contact info beyond that? Or could they just uh reach you through Twitter?

SPEAKER_01 50:18

You know what? I'm gonna give out my email address, and folks are very welcome to drop me a note. Uh and that is J L E R N E R at law.uci.edu. You can also just Google my name. Um but uh we we love working with filmmakers. We get inquiries all the time. If we can't help you, we can try to refer you to other people. Um but uh we think that documentary film in particular, as well as all independent film, is really important and increasingly important in today's media ecosystem. And so it's our great pleasure to work with folks like yourself who are doing such interesting, important work, and it's a unique moment in society for documentary, and um we're just very privileged to be able to work with folks um who are trying to uh see their visions through and share them with the public.

SPEAKER_04 51:07

Well, thank you so much, Jack. I really appreciate you taking so much time to you know share your expertise with us today, and thank you, Claire, for uh uh getting everything in order and handling the tech side of the show and keeping it running smoothly. Um so I guess thank you both. All right, thank you. All right, well, that's it for this week. Thanks, everyone. Thanks, Jack. Thank you. Okay.

SPEAKER_03 51:40

Be well, everyone. Now, in its second edition, Carol Dean's popular book, The Art of Film Funding, has 12 new chapters to cover all areas of film financing and how to avoid expensive pitfalls. Learn how to start with an idea and end with a trailer, how to make an ask for money, create your story structure and your trailer, legal advice, fair use, successful crowdfunding, how to ask for music rights, and what insurance you can't shoot without. Available on Amazon under Carol Dean and at FromTheHeartProductions.com. I want to remind our listeners that David Rakelin is a brilliant and talented award-winning musician who scores films and can compose music for a trio or for a full orchestra. David is a very good friend to the independent filmmaker and comes highly recommended by From the Heart Productions. If you need music to help tell your story, please contact him at davidrakeln.com. That's david r-a-i-k-l-n.com. And Carol and I want to thank you for tuning in to the Art of Film Funding. Please visit our website at FromTheHeart Productions.com. You can also find us on Facebook and Twitter. Good luck with your films, everyone.

SPEAKER_02 53:35

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SPEAKER_00 54:02

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