Documakers getting aid on fair use

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In a move designed to aid documentary filmmakers in making fair use of copyrighted material, Media/Professional Insurance has launched an initiative that will allow filmmakers who draw on existing video or film clips to insure their work.

In order to indemnify filmmakers who take advantage of the fair use doctrine, Kansas City, Mo.-based Media/Professional is teaming with the Stanford Law School Fair Use Project, headed by executive director Anthony Falzone. Attorneys at the project will vet works-in-progress to advise filmmakers whether they are working within fair use guidelines. If a filmmaker later faces charges of copyright infringement, the Fair Use Project will provide counsel on a pro bono basis.

Michael Donaldson, a Los Angeles-based intellectual property attorney who first proposed the initiative to Media/Professional, also will work with the project. And in cases where the project is unable to offer pro bono counsel, Donaldson and other attorneys will be available to handle cases at favorable rates.

The initiative will be guided by an advisory board that includes docu filmmakers Kirby Dick, Davis Guggenheim, Arthur Dong and Haskell Wexler; professors Peter Jaszi and Lawrence Lessing; and Donaldson and Falzone.

Until now, insurers and film distributors have required docu producers to obtain permission, often at the cost of an expensive license, to use copyrighted material before they will provide insurance.

According to executives at Media/Professional, the cost of the new offering will run from about $200 to about $2,000, adding 10% to the price of a typical errors and omissions policy, which can run from about $4,000 up to as much as $25,000 for a riskier film.

"Documentary films are an important source of education, commentary and criticism," Media/Professional president Leib Dodell said. "Rigidly requiring licensees or releases in all cases does not give filmmakers the flexibility to take advantage of fair use in appropriate situations. This initiative makes fair use work in the real world of independent filmmakers."

Dodell and execs from the company visited Los Angeles this week to tell filmmakers of the new product, which diane estelle Vicari, president of the International Documentary Assn., announced at the IDA's Oscar nominees reception Wednesday night at the Academy of Motion Picture Arts and Sciences' Samuel Goldwyn Theater, where the news was greeted with a standing ovation. "This is a breakthrough for independent voices in film," Vicari said.

The fair use doctrine has received growing attention within the docu filmmaking community over the past few years. As media companies that control video and film clips have steadily raised their prices for licensing clips, documentarians have fought back, arguing that the same fair use principles that apply to written works also cover nonfiction filmmaking.

In November 2004, American University's Center for Social Media developed a documentary filmmakers' statement of "Best Practices in Fair Use," whose guidelines the project will use.

Observing that copyright holders were increasingly demanding that filmmakers pay to license clips that the filmmakers had a constitutional right to use under existing copyright law, the statement set out to restate situations in which fair use is valid (HR 11/11/05).

"Fair use is the only tool we have to push back against aggressive users of copyright law," Falzone said.

Dick, director of "This Film Is Not Yet Rated," and Evan Shapiro, general manager of that documentary's producer, the Independent Film Channel, met with Media/Professional execs Thursday.

Kirby observed that licensing the 140 clips used in his film would have been prohibitively expensive. But working closely with Donaldson, he stayed within fair use guidelines, and no copyright holders have came forth to challenge the film. Free use, he said, "created the possibility of making this film."

Kirby added that more and more filmmakers are exploring current events like the Iraq War, partly because "the news divisions are cutting back on their investment in journalism. The press has historically been given more fair use latitude," he noted, adding that now "documentary filmmakers are stepping in."

While the courts have laid down rules governing fair use, Donaldson said the basic principles often can be reduced to two questions that he raises with filmmakers: "If you're making a documentary, did you really need this clip to tell your story? Did you use only what you needed to make the point?"

He said that with Media/Professional's new initiative, filmmakers will be "free of the yoke of paying for things that they have a constitutional right to use."
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