< Cloudy and Fair


Friday, May 19, 2006

BROOKE GLADSTONE: Amy Sewell is the producer and writer of the documentary "Mad Hot Ballroom". Her stories are enough to put a scare, not only in aspiring film makers but, it turns out, even law professors. Fordham University's Hugh Hansen is an advocate of strong copyright laws. He's what you might call a high protectionist, but even he concedes that for low-budget filmmakers, the system can be more of a burden than a blessing. He joins us now, along with James Boyle, who teaches law at Duke University. According to Boyle, copyright holders have in recent years ushered in what he calls "a permissions culture," ignoring the laws on fair use. That six-seconds ring tone that went off in "Mad Hot Ballroom"? Boyle says that's a legal no-brainer.

JAMES BOYLE: That's the question on the exam that if you get that wrong, the professor's going to fail you. Of course, it's a fair use. It's a classic fair use. It's, it's too easy a question. So it's not so much the law. I think it's the culture around the law.

BROOKE GLADSTONE: What is the permissions culture?

JAMES BOYLE: The permissions culture is the assumption that you have to pay for every fragment of copyrighted material, wherever it appears, whether in a movie or in any other context, that the rights holder gets to control every use, no matter how tiny, no matter how fleeting, no matter how accidental. That's, in the context of documentary film, what the permissions culture is.

BROOKE GLADSTONE: I'll turn to Hugh now. You know, it's only recently that copyright holders started demanding payment for short, incidental uses of their work, like a television program playing in the background or, to use another of Amy Sewell's examples, a child blurting out three words that were recognizable as lyrics to a song. Is that, in fact, the law?

HUGH HANSEN: It is not the law, and so what we have now is a situation where I think it may have started with the movie industry, perhaps their insurance. They would clear rights for things they did not have to clear. In a very big budget film, the clearing of the rights was rather a small thing, and they just did it to make everyone happy. The industries involved got used to being asked for everything, and it almost became a custom with them. And now they simply are applying old custom rules, which are not backed up by the law.

JAMES BOYLE: And that's, I think, one of the real outrages here. Filmmakers need to get what's called "errors and omissions insurance" in order to put their movies on, if you want to distribute your movie, and not just show it to your mother. And errors and omissions insurers say you have to clear it. It's in their interest to be relatively conservative. And, you know, if this were just another business, if they were just making sausages, we might say, well, you know, this is just the cost of doing business, that we have these intermediaries who are maybe unduly conservative. But the point is, if you're actually making the records of our culture, of our history, which is what documentaries are, then having a set of assumptions that you have to clear everything, it can really produce a kind of censorship, a kind of unwillingness to let the camera cover anything that could touch a piece of copyrighted culture --a piece of music, a bit of a movie, a bit of a TV show. You could film nudity, you could film violence, you could film armed conflict -

BROOKE GLADSTONE: But a Simpson's character, you better watch out. [LAUGHS]

JAMES BOYLE: Forget it. I mean, that just exposes the ludicrousness of this. And also, that's potentially quite harmful.

BROOKE GLADSTONE: So what is the law?

JAMES BOYLE: The law says that you can use fragments of copyrighted material for a variety of purposes, including news reporting, commentary, criticism. There are four factors that the fair use section sets out, and it's pretty clear that documentaries, particularly in these cases of kind of accidental capture, that the law is completely on their side, that what they're doing is they're not replacing a market for the work, they're just taking a tiny fragment that happened to be in their shot.

BROOKE GLADSTONE: Now Hugh, you tend toward high protectionism. There was a conference on copyright a few weeks back. I know that you heard a bunch of horror stories, along with James. When you hear those stories from artists and filmmakers, does it lead you to conclude that the law needs reform, or does something else need to be done?

HUGH HANSEN: No, I think the law's actually probably pretty good on these issues. It -- and in many situations, in life where there's a disparity in income and people who don't have money can't actually get the legal help to exercise their rights, we've done things like provided legal aid on a civil side, legal aid on a criminal side. I think that's what we should really be looking at, ways in which people can get access to legal assistance, and I think once they get access to legal assistance, I think the problem will largely go away, because people are not going to sue for the amount of money that would be involved with any of these independent filmmakers. Frankly, I think we need a few test cases.

BROOKE GLADSTONE: And there have been some cases. There was the case of the independent filmmaker who did a film parodying the image of Barbie. Mattel took them to court, and lost. "George of the Jungle", the movie, used Caterpillar tractors to take down part of the rain forest. Caterpillar took that to court, and Caterpillar lost. But you think we need test cases beyond that?

HUGH HANSEN: Yeah, I think we do, or at least we need people willing to bring test cases. And that, I think, will force people in the industry to rethink what they're doing.

JAMES BOYLE: I think Hugh's absolutely right. I think that's what we've got to do, on one end. But I think you have to also work on the other end, the pre-production end, because there's another problem here, which is an increasing unwillingness of filmmakers ever to get this kind of material into their viewfinders in the first place -- a remarkable state of ignorance about what the law permits, just incredible situations where people were telling me well, "Of course, I know I'm not allowed to show the logo on people's hats when I'm filming them." [LAUGHTER] And this makes any intellectual property lawyer just kind of like roll his eyes and go, "What are you talking about? Of course you are." So, I think we also need to focus on the front end, on education, on reaching people who may be producing in non-conventional means, who may not have access to lawyers, and to help explain to them what the rules actually are, because I agree with Hugh. I think the rules are pretty good. I don't think the rules do need to be changed.

BROOKE GLADSTONE: Well, what do you disagree about? [LAUGHS]

JAMES BOYLE: Well, I can take a stab at that, and Hugh can correct me. I think Hugh tends to see copyright as a kind of a Lockeian thing, as a reward in part for labor, and I tend to see it more as, in fact, that the real goal of the copyright system in many cases is to feed stuff into the public domain, to get the person who's creating to create it, and the distributor to distribute it, and then as soon as possible, ideally under very short copyright terms, to get that material out there for everyone to reuse, change, adapt, and make their own versions of. And I think -- Hugh's vision, I think, sort of starts from a different set of premises and so comes to a different set of conclusions.

HUGH HANSEN: Well, I guess I am Lockeian. I think most people in this country are Lockeian, and have not read Locke. It's not like copyright is this rigid cage, which prohibits people from building on something which someone else did. I think there's flexibility in the system. Music, for instance, architecture, choreography -- there's constant use of what went before and copyright's been okay with it. But if you have too much flexibility in a system, you don't have a system any more, and when you need protection, you don't get it. And if you're an artist, you want some autonomy and control over your work. And it's important not to trash a system because there are abuses to the system. And simply, the abuses, I think, are getting worse.

JAMES BOYLE: I like to say that the great thing about how extreme copyright culture is nowadays is that the assertions which are being made by copyright holders are so stupid that everyone is coming to agree on them, and I think Hugh and -



BROOKE GLADSTONE: Thank you both so much.

JAMES BOYLE: Thank you.

HUGH HANSEN: My pleasure.

BROOKE GLADSTONE: James Boyle is a professor of law at Duke University and co-author of "Bound by Law", a comic book about fair use, available for free on the Duke Law School website. Hugh Hansen is a founder of an annual conference on intellectual property and professor of law at Fordham University.