October 16, 2005

Fair use? "Honestly, for your first film, you don't have enough money to fight the music industry."

Film documentarians often pick up bits of songs (or glimpses of TV shows) and are shocked at the prices asked for the right to use the material -- perhaps far more than the cost of making the film. And now that everyone's cell phone rings a copyrighted song, they might have to pay $10,000 just to keep the footage where the phone rings.


Dave said...

This is one reason I keep my cell phone on vibrate.

Dirty Harry said...

I can tell you from recent personal experience that music is the least of the first time filmmakers problem.

I've run into an entire system designed to keep upstart filmmakers from having any chance of producing a low-budget film that meets all the hurdles necessary for festival or distribution.

1. Permits are outrageous. You need them even if filming on private property. We have a scene at a privately owned church and are trying to figure out if it's worth the $900.00 for the permit. (That includes filing fees, the permit itself, and other nonsense.) This is for one day and we're not even shooting outside. But if someone complains we could be shut down.

2. The unions: The Screen Actors Guild: Any actor in the guild can be thrown out for working on a film that doesn't work under the union. The paperwork to do this is 3 inches high. I cannot begin to tell you how complicated it is and the other reams of paperwork it breeds. The costs financially are enormous: at least $200.00 per day, per actor and the actor sees less than half of that.

So, if an actor in the guild, who needs work, wants to work in a non-union film he can't.

3. Insurance: Now insurance is a reasonable request and I believe in it especially if you're going to shoot on someone elses property. But my 25k budget requires 4k in insurance!

Now I can drive a 2 ton mini-van all over hell and on private property all day long for $550.00 a year. But 200 pounds of camera eqpt...

And it's all a racket. It's all about keeping the upstarts from upstarting. I would never make a movie that stole music or anything from anyone else. But I can't shoot with people who want to be in it or on people's private property without incurring literally fifteen to twenty thousand dollars in additional costs.

And the studios love it. Just like big business loves the punishing environmental and tax and other regulations that keep people from getting in.

Ann Althouse said...

Wow, thanks, Dirty Harry. This sort of thing makes me mad for so many reasons. The studios films are awful. They need competition.

Steve Donohue said...

Remember the Shining parody you had on the site a few days ago? Apparently the studios are mad at the person who made it because they're distributing portions of the film freely without paying for it.

Even a 30-second satire in which the content has been purposefully spliced beyond recognition doesn't escape the oily hands of the entertainment industries. (I know the post dealt with music, but this seemed germane.)

Dirty Harry said...

It's infuriating. I spent 6 mos scrounging 25 locations -- half of which were businesses -- finding 20 actors, buying the equipment, finding a crew, and organizing it all... And because of the unions and permits and all else I had two choices:

I could make the film for 20k, constantly risk being shut down even on private property for lack of permits,, and have no chance at distribution because the paperwork and unions weren't on board...

Or, not make the movie even though I had a willing cast crew, all the eqpt, and locations on board.

Lucky for me a production company has jumped on board with the extra money and expertise to make this film and meet all the requirements needed for a sale but it shouldn't have to be that way.

We start shooting in three weeks. But the budget's tripled just to satisfy the bureaucrats.

erp said...


This is really a shame. Best of luck. I hope you can work it out and get your film made. As Ann said, movies today are terrible. Some new people and ideas would be very welcome.

peter hoh said...

Of course it's nonsense. What makes a snippet of music or television special? Maybe architects should start charging the studios when their creative work shows up in a movie or on TV.

Decklin Foster said...

It amazes me that there is not more outrage over this, and that it still feels like my little fringe issue.

The studios etc. who have bought up all these copyrights act like they own everything! It's not a God-given moral right, it's one of the enumerated powers in the Constitution.

There's plenty of people lobbying for more copyright power because then the studios can make more money off what they've got, but there's very few people lobbying for the public domain or someone's right to make a transformative parody or mashup, because, well, there's no money in it. Classic tragedy of the commons.

There really needs to be some restoration of balance here. People want songs they know on their phones because it's culture, and because it's expression. Their being able to pay the artist for it is a good thing. The company that gets the money to the artist being able to hold a film hostage because it recorded some of that culture is simply insane, and not at all what the copyright power was intended to do or should be interpreted to do.

Mike said...

This has less to do with fair use/non-fair use, but rather the fact that fair use is a defense to copyright infringement. Therefore, industry realizes that they can ask for royalties calculated to be LESS than even starting litigation.

If someone doesn't pay, they force litigation and obtain a settlement. Litigating a fact-based inquiry like fair use through a court decision costs WAY more than rates people are quoting here. Not to mention the fact that obtaining a preliminary injunction is relatively cheap for the industry and very costly to the fair users.

Generally speaking, the value of using the fair use material is low. It's incidental--like the ring tone or the Simpsons episode on the TV in the background--or for even something less--like the novelty of sticking your CDs on an iPod. Who has the resources to fight that day-in-and-day-out?

Time to restructure the way we think about copyright.

Bee said...

I fail to see what is so outrageous about this. If I created a song, and someone used my song in their movie--to which they were getting money for--I, in turn, would want the appropriate credit for the use of my song.

The fact that the song is being played on a cellphone has nothing to do with it. The cellphone itself is not the issue, as I've probably already worked out copyright issue with the distribution of the cellphone. Rather, the issue is that now my song is being performed in a venue that is for profit (the movie).

As for:
The company that gets the money to the artist being able to hold a film hostage because it recorded some of that culture is simply insane, that is the publishing company, that works for me, correct? They are not holding the film hostage, they're simply working to get me what my song is worth. Could the film makers simply replace the sound of my song with the sound of a cellphone ring?

Decklin Foster said...

Bee: OK, let's go with the idea that you're a songwriter. Maybe you want to write a pop song, with some lyrics it it.

For example, I'm listening to The New Pornographers right now. And Neko is singing, "hey-la, hey-la..."

What if someone decided "hey-la" was owned by someone else? Surely another pop song has ended "hey-la, hey-la" before. Maybe they should have had to pay a royalty before they used it in theirs that way.

I think this is the appropriate level of importance to map onto a film that includes someone's cell phone ringing. The director wants to make and sell a film, not a bad version of someone else's music. That film is about, contains, and comments on a world which already includes a lot of art. But it is also something entirely of its own. So is a good pop song.

Are we better off if we give people incentives to stake out and hoard the commons, or to make it bigger?

And before anyone complains that a standard pop-music trope is not as difficult or worthy of reward as a particular ringtone, please (a) write a new pop idiom (b) go to a local high school and count how many different tunes you can discern from ringing phones.

gs said...

Ann: You have both a creator's and a lawyer's perspective on this kind of issue.

Intellectual property is a worthwhile social contract imho, but it is being abused in a way which is counterproductive to its original purpose. A government power which the consitution legitimized as an aid to innovation is being used to stifle progress. I mainly fault Congress for tilting the balance between creators, consumers and corporate interests to the overall detriment of society.

In the baroque period, the music scene in Italy and Germany was a hodgepodge of baronies and city states competing with each other for prestige and excellence. Music in baroque France was a Crown monopoly. (Disclaimer: I'm no historian. I occasionally skim CD booklets.) Go online and compare the French baroque catalog to the Italian and German ones. Better yet, get the music and listen.

(Yes, I know that Vivaldi used to go bonkers when people ripped his stuff off. My point is that we can do better by the Vivaldi's and the listening public. As for the Michael Eisners, let's, ah, take things away from them for the common good. I should say, let's take back things from them: the things their lobbyists got Congress to rip off from the public.)

XWL said...

Copyright laws need serious overhauling.

Personally, I think copyright shouldn't extend more than 10 years beyond the life of the artist or more than 40 years after the creation of the artwork.

That would give every other generation of artists a huge opportunity to reuse the work of their forebearers and create wonderful new works.

Projects created by corporate entities (like studio films) should have 25 years as the exclusive property of that studio, after that time those characters should become available for fair use (I'd love to see a Trey Parker and Matt Stone Mickey Mouse or Bugs Bunny cartoon).

Where would Shakespeare be if every quote and every mutation of one of his plays required payment to some corporation that was smart enough to keep and renew his rights perpetually?

Endless copyright protection for intellectual property is against the original intent of copyright laws and stifles creativity, it's never too late to instigate reasonable limits on laws that have gotten out of hand.

Bee said...

I'm by no means a copyright expert, but I don't think, per your example, that it is possible to copyright words alone: "hey-la". However, if someone used a sample of the New Pornographers song and words, and inserted into their own music so it was recognizable from the source, then I would see that as an infringement. (I'm thinking of Vanilla Ice ripping the hook from Queen/David Bowie's _Under Pressure_).

I see your point that the filmmaker is documenting life, and what a person wears, says, and selects as a ringtone is part of the texture of that person. But that person doesn't own that song, and neither does the film maker. I've licensed it to the person as a ringtone, for his personal use. Now the filmmaker needs to license it from me, for commercial use.

If the people in the documentary were performing a snippet of a play, then the playwrite would want to enforce the copyright of his work, and would need payment, correct? Anytime that playwrite's work is performed in public, then it is a use of his copyright and he should receive compensation for his work. (Or how else would he survive as an artist?) Is there anything wrong with that?

Really the question should be "why does it cost so much", rather than "why does it cost." To that, I don't know the answer.

BTW, if I were an artist, I would subvert this issue entirely by not offering my songs as ringtones. I would probably also manage my own copyright and look into a creative commons license.


Mike said...

The problem is that the inadvertent use of the ringtone is not the commercial purpose nor is the movie producer trying to claim the ringtone as their own. Far be it from me to argue that the creative should not be able to capitalize on their works, however, there is a very long way between what ought to be consider copyright infringement and such inadvertent use.

If we want to talk about sampling or abridgement then I beg that you go read the recent post by a preeminent copyright scholar: William Patry: Fair Use and Fair Abridgement.

HaloJonesFan said...

"Personally, I think copyright shouldn't extend more than 10 years beyond the life of the artist or more than 40 years after the creation of the artwork."

Why 10? Why 40? What is special about these numbers?

And why should there be numbers at all? Should I have my house taken away after 40 years whether I'm ready to move or not?

"That would give every other generation of artists a huge opportunity to reuse the work of their forebearers..."

A: "forebears".

B: Why do they have to "re-use" the work of their predecessors? Why can't they come up with something new on their own?

"The problem is that the inadvertent use of the ringtone is not the commercial purpose..."

That doesn't matter. The filmmaker is deriving income from someone else's achievements, however small and however tangentially.

Decklin Foster said...

Halo, you are operating under the assumption that a copyrighted work is the same as physical property. It is not! Please read the relevant law. You are perfectly welcome to hold the opinion that it is morally equivalent, but I disagree, and I think such an opinion is detrimental to you, to me, and to artists. It is detrimental to artists not only because it suffocates the market for their work, it suffocates their ability to create at all.

All art is based on other art: my new song may not be a "derivative work" of your song under the law, but it uses a twelve-tone scale, meter, and notes, and engages the structure of any number of songs, yours or otherwise, by echoing or refuting it. Film, in particular, goes even deeper here. I encourage you to take a film class.

The term of copyright, you may be surprised to find out, has been changed to many different "arbitrary" lengths since it was first established.

I think you need to ask yourself *why* we have these policies, not simply what they are. Right and wrong do not have their basis in the compromises we've written into law right now. I believe that compromise has gone way, way, off track, and no longer promotes the progress of the useful arts and sciences.

Bee: I would like to recommend a good scholarly book on hip-hop to you, but I don't know one offhand. I suggest you look into its history in the early 90s, particulary in the aftermath of works such as Paul's Boutique and 3 Feet High and Rising, for an example of what can happen to an art form as the lines between things which are by convention not copyrightable (as in my example) and things which are (as in yours) is being redrawn and figured out as artists work.

I would also ask anyone to explain to me how, in our hypothetical movie case, an artist's ringtone arrangement being hurt harms that artist (financially or otherwise). This seems like nothing more than a case of labels grabbing for money because they can, not because it benefits the musician, the filmmaker, or, most importantly, the public.

XWL said...

Decklin already responded well in my stead, but if some people question my reasoning (for every poster their are surely many who agree) I feel obliged to explain a little more.

40 years I believe is reasonable for a living artist to hold their copyright. If you created a great work at the age of 25 and still would be seriously damaged by the loss of the income from all use of that work at age 65 then I think you are doing something very wrong. Nothing would prevent you from continuing to capitalize on your past works, you just wouldn't continue to have a monopolistic advantage over other artist in exploiting your past efforts, I don't see that as unreasonable, sorry (as one example, Parker Brother's accidentally allowed the Monopoly copyright to expire and people still buy their version of the game).

As far as 10 years after death, too many times you have family members who had nothing to do with the output of an artist glom on to the work of their relatives and create an industry out of that work (Hendrix and Presley come immediately to mind). A single decade would be a reasonable time for those family members to realize whatever profits they can.

Look at the number of films based on 19th century literature. If copyright were applied then as it is now there would not have been as many versions of Dickens' books, nor Dracula, nor Little Women, nor many other stories that lived on and found new audiences in large part because producers were free of copyright restrictions when presenting these tales.

Many people would not be so familiar with classical music if there were still Bethooven's and Bach's and Chopin's running around making sure they got their $10,000 everytime a few notes from their works were played since the use of that music would be sharply curtailed.

So to sum up, no there was no prestidigitation involved in conjuring those numbers just some speculative reasoning based on what I think would be fair to the artists, their estates, and future artists who find themselves inspired by the past.

(which also is why I would shorten and place a firm limit on the lifespan of corporate copyrights as they are mostly about commerce and not creativity)

Decklin Foster said...

XWL: One good example is Disney, who always lobbies very hard for copyright term extension whenever Mickey Mouse is in danger of falling out of copyright. Mickey himself was a riff on a Buster Keaton character, and the vast majority of Disney's success came from interpreting stories that are part of our public domain (Snow White, Cinderella, etc).

This is a good thing! I am arguing on behalf of people who *create* art, not people who steal it. I love sample-based music as well as pop, and I am flabbergasted when someone relegates it to the latter category. The amount of amazing creativity that's out there is dwarfed only by the palette we now have to work with after a century of recording technology making culture that much more accessible and that much easier to draw on. Whenever someone argues that a story or musical form, etc, that has become part of our culture should be someone's property for absurdly long (and ever-increasing) terms, they are arguing *against* the next Disney.

We are much richer off for not having to wait centuries to remix our culture and produce new things and keep the market for creative expression thriving.

As Dirty Harry pointed out, there are enough obstacles to doing this already. Notions of moral certainty that *do not actually make things better for anyone* do not need to drive policy that creates even more.

Bee said...

Is not copyright intellectual property? Am I misreading the information here?

I have no argument on whether or not artists can create new material from existing sources--sampling--as in hip hop. We simply part ways on whether or not the original artist should get credit or compensation from such experiments.

My husband has written a book, and I am writing one now as well. I would be very happy for my daughter (and her children) to reap the benefits of such endeavors for years after my death, although she has "nothing to do with the output" of what I am writing. As far as I'm concerned, she has more right to my intellectual property than a public that has no claim on me whatsoever.

HaloJonesFan said...


"Halo, you are operating under the assumption that a copyrighted work is the same as physical property. It is not! "

Why not? Are you so childish as to say "I can't touch/smell/feel/taste it, so it doesn't actually exist"?

"All art is based on other art..."
So "Star Wars" is based on "Romeo and Juliet"? 'These two movies have similar themes' is not equivalent to 'one of these movies is based on the other'.

"my new song may not be a "derivative work" of your song under the law, but it uses a twelve-tone scale, meter, and notes..."
:rolleyes: See, the twelve-tone scale is a convention that musicians agree on. There's no particular reason why it exists, although it is perhaps the best-sounding repeating series of intervals. But suggesting that two songs are derivative works because both use a twelve-tone scale is like...it's like suggesting that two books are the same book because they both use the English language!

"I think you need to ask yourself *why* we have these policies, not simply what they are."
We have these policies so that there is a clear definition of what is an allowable use of someone else's property!

Are you suggesting that all copyright-infringement issues be settled via the tort system, rather than be legislation? The mind boggles at the world that would result.

"I would also ask anyone to explain to me how, in our hypothetical movie case, an artist's ringtone arrangement being hurt harms that artist (financially or otherwise)."

It harms the artist because, presumably, they expect to derive income from their creative actions. It doesn't matter how, where, why, or how often the product of those actions is used; the artist expects to receive compensation for that use.

You're also required to stamp on any instance of copyright infringement, or you lose all ability to prosecute other infringements. After all, you let that one go, right?

Decklin Foster said...

No: Romeo and Juliet is Troilus and Cressida; Star Wars is Kurosawa via Joseph Campbell. Do try to pay attention!

Bruce Hayden said...

The problem with copyright term is that it is being pushed up at about the same speed that time marches on. In other words, little has fallen into the public domain in the last 30-40 years because copyright term has gone up that much during that time.

Not surprisingly, the last copyright extension was called the Micky Mouse Copyright Extension Act - because probably the biggest backer was Disney, and the biggest franchise verging on public domain was Mickey.

The problem with all this is that there is a social compact with intellectual property. The government gives an exclusive franchise to someone in trade for them disclosing their art to the public.

The problem is that the public got no benefit from the recent copyright extentions. Indeed, if you look at copyright as the incentive to create, there was essentially no net increase in the incentive - since the present value of the added term for any new work is effectively zero (being so far out in the future). Rather, the entire benefit goes to copyright holders like Disney to further protect works of authorship that were "paid" for by their copyright 30-40 years ago (given the copyright term in effect at the time of creation of those works).

Unfortunately, the Supreme Court bought on to the argument that a "limited time" can be near unlimited as long as it is technically limited.

Hunter McDaniel said...

Ann, I'm glad to see you get outraged about this topic. I'm afraid it doesn't get as much attention as it deserves because, since it has nothing to do with abortion, the divisions do not fall along party lines.

Freeman Hunt said...

Dirty Harry, you should shoot out of state.

Sean E said...

"Intellectual property" is NOT the same as other property. It's a legal construct intended to encourage the creation of art by allowing the creator to make a reasonable profit from it.

If indefinite copyrights would be a good thing, what about indefinite patents? Certainly as much work and creativity went into discovering penicillin or the internal combustion engine as writing "Gonna Fly Now". Yet we have generally agreed that society is best served if patents expire once their creator has had a reasonable chance to realize a profit. Why should artists exist on a higher plane?

Is it really in society's best interest that someone can still be sued for writing a parody of "Gone with the Wind"?

Mike said...

Halo: the simple reason that one cannot equate "physical property" with "intellectual property" (and also why it is often a clue to a debater's actual experience with the topic) is simply that they are not equal. At best, the two relate merely by analogy.

Clearest example is that ordinarily we do not think of private physical property being subject to fair use. One cannot drive another's car since that would amount to depriving the other of value. On the other hand, I can sing your songs in my head without any measurable cost to you--this is not the same as singing your songs out loud and in public.

The problems don't stop there.

Furthermore, one can think of physical property as something capable of deriving value outside the law--think guns. As such, value is intrinsic. It is difficult to imagine that you could get much of return without a government grant or court protection (This is even true for trade secrets).

Finally, intellectual property is very rarely born out of nothing. No matter how creative someone thinks they are, rarely is that creativity genuinely unique. Disney is a classic example of public domain users used to create private intellectual property. As such, a balance must be struck between incentivizing creative people and providing for the public domain.

Conflating physical property with intellectual property aids no one.

Dirty Harry said...


Shooting out of state presents a number of different problems including travel expenses for cast and crew.

But what it's really all about is whether your movie has a chance at a sale or distribution. I can shoot out of state, but when I return the problems with the unions and releases and all that stuff remains and keeps you from being able to do anything serious with the film.

What's interesting about Hollywood is what they call censorship. They consider censorship a form they have to fill out that's like an affadavit claiming people in sex scenes are of age and consented. It's a federal form. It's a pain. But it's not censorhip. But they call it censorship because it "might" dissuade a filmmaker from including a scene rather than fill out the paperwork.

And yet the industry has created towering restrictions to keep upstarts from making their movies at realistic costs.

If one's censorhip the other is much worse.

Freeman Hunt said...

Dirty Harry, I agree with you that it is ridiculously hard to make a film in CA or NY.

However, if you have a saleable finished film, distributors aren't going to care what kind of shoot you had. Profitability is king.

You are right about Hollywood censorship. Think about actors. An up and coming actor cannot have his name associated with any right of center political views. If he does, he's screwed. Actors in Hollywood only have political freedom after they make it big. (This is probably true for directors as well.)

Good luck on your film!

Bee said...

Sean E.,
Is someone here saying that indefinite copyrights are a good thing? Or is that what the current copyright law and its use allowing?

Is it possible to get sued for parody? I thought parody was protected under fair use.

Disney is a classic example of public domain users used to create private intellectual property. As such, a balance must be struck between incentivizing creative people and providing for the public domain.

Is my understanding correct in that Disney is taking public domain stories--such as Cinderella, and then protecting the copyright of their expression in the cartoon? Isn't that what the copyright is for?

And what--if any--obligations does an artist have to create material for the public domain? Is the public entitled to such goods? I'm genuinely curious.

And I was thinking about what XWL said earlier about corporate entities losing exclusive rights of their characters after 25 years. What could James Dobson do if he got a hold of South Park's Kyle? I could just see the comic book now: "See Kyle convert to Christianity!" Shudder.

Sean E said...

Bee, halojonesfan questioned why copyrights should expire at all, comparing it to losing his/her house. And there seemed to be enough posts defending the current multi-generational copyright regime that "indefinite" didn't seem like too much of a stretch.

You can get sued for parody. It should be protected under fair use, but defense costs aren't trivial and there's never an absolute guarantee the judge/jury will find in your favor.

HaloJonesFan said...

Here's another question: What do anti-copyright people think about Peeing Calvin window stickers?

If you deny copyright, you support Peeing Calvin.

Hunter McDaniel said...

Ok, I support Peeing Calvin. Not sure what he is, but some disrespectful takeoff of a copyrighted cartoon character, mabye?

I don't care for the notion that copyrighted characters should be protected from mockery. If we allow (hell, subsidize) Piss Christ, then as far as Piss Calvin is concerned - bring it on!

Bee said...

An interesting article on Bill Watterson , the artist who created Calvin and Hobbes. Wanting to preserve the integrity of his strip, he never licensed any of the characters, and walked away from the strip at the height of its popularity. I think it's safe to say he's against peeing Calvin...

Mike said...

To call people "anti-copyright" is sort of black-and-white. Certainly, I'm not anti-copyright. No more than I'm anti-patent or anti-trademark. (If I were, I'd be out of a job pretty quick as IP is my field). However, long periods of protection and lack of sufficient public protections is not good for anyone, and that's not to mention probably unconstitutional.

As for peeing Calvin, I'm not sure I understand the point/question. Are you asking if I believe the peeing Calvin is fair use? My opinion, it's probably not fair use. It's probably also not parody or satire. However, I'm sure the creator of the peeing Calvin probably would assert all three.