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.
Subscribe to:
Post Comments (Atom)
Posts
23 comments:
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.
Wow, thanks, Dirty Harry. This sort of thing makes me mad for so many reasons. The studios films are awful. They need competition.
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.)
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.
Harry,
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.
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.
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.
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?
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.
Decklin,
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.
www.creativecommons.org
bee:
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.
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,
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.
XWL,
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.
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.
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.
Dirty Harry, you should shoot out of state.
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.
Freeman,
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.
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!
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.
Mmmbeer
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.
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!
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...
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.
Post a Comment