Copyright isn’t the last word

The documentary “Enron: The Smartest Guys in the Room,” Alex Gibney’s chronicle of the excesses and collapse of the giant energy company, could not have been made without the use of some unlicensed copyrighted material. Neither could “Outfoxed: Rupert Murdoch’s War on Journalism,” Robert Greenwald’s expose of Fox News, which was packed with damning footage the network would never have cleared.

The message Gibney wants to get out is that not all copyrighted material has to be licensed to be included in films. The “fair use” doctrine, he said, permits filmmakers in certain circumstances to use such material without paying for it.

“Without ‘fair use,’ corporations could prevent us from talking about certain things by withholding the copyrights,” Gibney said. “That infringes on the 1st Amendment, freedom of expression. It also affects the bottom line. Filmmakers are routinely charged $100 or $120 a second to license footage -- prohibitive for noncommercial filmmakers. Someone actually wanted me to pay $80,000 for a one-minute clip. I passed, violating history by not including it.”

Stories such as these spurred the creation of “The Documentary Filmmakers’ Statement of Best Practices in Fair Use,” a document to be released today by American University in Washington, D.C., as a guideline for judging when material is free for use. The statement describes situations in which filmmakers believe the code applies, saving documentarians the cost of consulting attorneys. The law is intentionally vague, intended to be interpreted case by case.

Fifty documentarians, including Gibney, were interviewed in a study funded by the Rockefeller Foundation. Because filmmakers create material that could also be licensed, they have one foot in either camp, observed Pat Aufderheide, a professor of documentary film at American University who organized the project along with Peter Jaszi, director of the university’s Program on Intellectual Property and Public Media.

“We learned that clearance problems have led to self-censorship,” Aufderheide said. “Filmmakers are reluctant to embark on historical or music documentaries or social criticism because clearances loom large. They’re also distorting their work, dropping background music, telling their subjects to turn off their TVs or even substituting other programs because they don’t know their rights.”

In another study, funded by the MacArthur Foundation, researchers investigated the effect of copyright clearance on the distribution process. The acclaimed PBS documentary “Eyes on the Prize,” Aufderheide said, is no longer accessible because rights to the material -- much of which should have been considered “fair use” -- were valid for only five years. Litigation-wary programmers generally demand “errors and omissions” insurance before disseminating a film, in case anything is wrong or overlooked. Insurance companies are reluctant to issue that coverage unless all material has been licensed.

The consolidation of media outlets and the Internet have turned up the heat, said Jack Walsh, co-director of the San Francisco-based National Alliance for Media Arts and Culture, which, along with the Assn. of Independent Video and Filmmakers, the Independent Feature Project, the International Documentary Assn. and Women in Film and Video, hosted meetings for members to shape the terms of the document.

“Now that fewer companies are holding the rights, competition has decreased,” said Walsh. “It’s easier to demand higher rates. It’s also easier to rip off people’s ideas and materials in the digital realm. Piracy has become an issue. The assumption is that everything should be available, but creators need to make money. ‘Fair use’ isn’t a black-and-white issue but shades of gray -- and there’s strength in being aware of the agreed-upon standards.”

The fair use doctrine is a bridge between the monopoly created by copyright law and the right of free speech, said Michael C. Donaldson, former president of the International Documentary Assn. and author of “Clearance and Copyright.” Congress integrated the principle into the copyright law in 1978, said Donaldson, who is also an entertainment lawyer on the legal advisory board of the project. The last 10 years have seen a number of cases that have helped define the term.

“The courts have generally supported the rights of filmmakers to use copyrighted material -- provided they don’t use too much,” Donaldson said. Someone can only take what is needed to make the point cinematically. Filmmakers are also required to change the context, or else it’s considered copying.

Down the road, project organizers hope to provide legal clinics for filmmakers and to encourage use of the document for students of intellectual property law.