Recut, Reframe, Recycle: An Interview with Pat Aufderheide and Peter Jaszi (Part Two)

Your team has had good luck developing a set of guidelines to provide more clarity to documentary producers about when their deployment of borrowed materials is protected under current legal understandings. Can you describe some of the impact that this report has had? What lessons might we take from those experiences as we look at the challenges confronting amateur media makers?

PA: Documentary filmmakers found their hands tied creatively, without access to fair use. So in November 2005 they developed a consensus statement, Documentary Filmmakers’ Statement of Best Practices in Fair Use, through their national organizations and with our coordination, which describes four typical situations that come up for them, and what the principles of fair use are, along with the limitations on those principles. For instance, the Statement shows that in critiquing a particular piece of media, you can use that media to illustrate your point. The limitation is that you can’t use more of it than makes your point. Common sense and good manners require that you let people know what it is (provide credit).

Filmmakers, who want access to television and theaters (that would be most of them) need for gatekeepers to agree to their claims. The Statement almost immediately made that possible, and more and more gatekeepers are turning to it. Only eight weeks after release of the Statement, three films (Hip Hop: Beyond Beats and Rhymes, This Film Is Not Yet Rated, and The Trials of Darryl Hunt ) went to the Sundance Film Festival — a make-or-break place for the documentary market — because they had been able to justify fair use using the Statement. Partly as a result of their Sundance showcasing, all three received television screenings from entities that approved their fair uses of major parts of the films. Hip Hop was picked up by PBS/ITVS Independent Lens; This Film went to the IFC cable channel, which went so far as to write its own internal fair use policy; and Hunt went to HBO.

Filmmakers have also used the Statement in order to conduct reasoned negotiations that lower clearance costs. IFC’s Wanderlust, a film about road movies, licensed clips from several studios and used the Statement to lower its costs by hundreds of thousands of dollars.

Television programmers increasingly turn to the Statement. U.S. public television has broadly incorporated the Statement. Independent Television Service (ITVS), which co-produces dozens of television programs a year, endorses it. Producers at WGBH, one of the largest producers in U.S. public TV, give it out to their producers, and use it themselves. Public Broadcasting Service (PBS) has shared it with all general counsels and general managers in its network. On a case-by-case basis, other cable companies, including HBO, Discovery Times and the Sundance Channel, have accepted fair use claims grounded in the Statement.

Professionals have found the Statement valuable. The legal community has publicly recognized the Statement at The Copyright Society of the U.S.A., the leading association of copyright attorneys, which has showcased fair use and the Statement at regional and national meetings. The University Film and Video Association, the leading association of film and video teachers in higher education, has endorsed it and teachers in the UFVA’s Fair Use Working Group have developed boilerplate teaching language.

Online video organizations have found it useful. Joost has endorsed the Statement, and Revver.com links to the Statement on its copyright page for uploaders.

Errors and omissions insurance may well be the best gauge of the adoption of fair use in general, and the Statement in particular, since insurance companies are both the ultimate gatekeepers for television documentary and also historically cautious to adopt practices that involve risk. And since fair use is a right, which can be challenged as well as asserted, insurance companies have typically only accepted fair use claims with considerable negotiation, on a case by case basis, and have much more routinely insisted that rights be licensed. The four companies most used by U.S. documentary filmmakers—AIG, MediaPro, ChubbPro, and OneBeacon—all announced programs to cover fair use claims between January and May of 2007.

The Documentary Filmmakers’ Statement of Best Practices in Fair Use has had a profound effect on the documentary marketplace.

The lesson for the wider and still-emerging participatory environment is that knowing your rights and in particular knowing what acceptable fair use is to your field of practice is critical. Copyright is not broken, but knowledge of copyright law is broken.

You’ve drawn a distinction between acceptable use and fair use. Explain. Why might a push towards an acceptable use policy prove useful in responding to the current challenges facing amateur media makers?

PJ:In a so-called “acceptable use” policy, a copyright owner (or a group of them) might announce that it simply won’t challenge certain kinds of quotations from its material – without giving an opinion, one way or another whether those are the kind of uses (i.e. fair ones) that people actually have a right to make. There’s been some talk recently on the part of content owners about this approach, and we certainly don’t oppose it. Anything that brings any additional clarity to is welcome.

But owners’ announcements about “acceptable use” would be no substitute for “Best Practices” developed by and for particular creative communities. For one thing, “acceptable use” rules are always subject to unilateral change, as markets develop or business models morph. For another, “acceptable use” policies are likely to be more restrictive than fair use. To give one example, most discussions of “acceptable use” focus on private and strictly not-for-profit uses, including education. But fair use also operates robustly in the commercial environment (think of book publishing, for example) and that is exactly the environment into which on-line video production is moving as running platforms becomes a profitable business. So while some of us could benefit from “acceptable use,” we all need fair use.

YouTube contributors are not the only group which confronts uncertainties about Fair Use. You’ve also been looking at the impact of these confusions and anxieties on Media Literacy educators. What have you heard? What kinds of classroom practices are being restricted as a result of fears or confusions about Fair Use?

PA:In company with Temple University’s Center for Media Education and Prof. Renee Hobbs, we talked to dozens of seasoned teachers of media literacy, who every day need to quote popular culture to do their work, and issued a report, The Cost of Copyright Confusion for Media Literacy. We found that teachers’ ignorance about copyright — and particularly their lack of awareness of the fair use provision – impairs their teaching of critical thinking and communication skills. Teachers in language arts, social studies, literature and media literacy, among many others, find themselves hamstrung by copyright practices that do not accord with good law.

The report reveals that teachers who use popular culture in the classroom, and particularly teachers of media literacy, are typically put into educationally untenable situations. Teachers need to reproduce, show and demonstrate the popular culture they are analyzing, but this is often obstructed. One professor was forbidden to bring any media except that available in the university library into the classroom. Another was banned from photocopying illustrative material, including advertisements, for class analysis. Many are strongly discouraged from sharing their students’ work outside the classroom, even within the same school.

Furthermore, many internalize these constraints, taking three resorts (sometimes all three): hyper-compliance; studied ignorance; and limiting all work including their own curriculum innovations to their own classrooms. All three result in bad teaching practice for media literacy.

We hope to work with media literacy educators, much as we did with documentary filmmakers, to establish best practices in fair use. These best practices, we believe, will put decision-making back in the hands of the teachers.

More generally, how does the lack of clarity on such matters impact the growth of media literacy in this country?

PJ: As distinctions between teachers, students, makers, users and distributors continue to blur, we are all becoming more and more dependent on fair use — whether we know it or not. These days, some of the most important “media literacy education” is occurring far from the classroom. People learn about how to understand media in a variety of settings, and in a variety of ways. After-school programs and youth media activities are part of this trend. More broadly still, young people are learning about media from one another, by taking advantage of all the new tools that permit them to be makers rather than mere consumers of content. This is a powerful social development, but it also is a fragile one. Nothing threatens it more than inappropriate applications of copyright discipline. The last lesson we want to teach young people as a society is that it is wrong to participate actively in one’s own culture, and that the choice they face is between compliance and transgression. Whichever choice they make will represent destructive mislearning.

What are the next steps for your research group?

PA: As we already mentioned, we’re developing a blue-ribbon committee of scholars and lawyers to develop a best-practices code for online video. We are working with media literacy teachers to develop a best-practices code, as well as with dance archivists and other groups. Each of these groups, and other creative communities still discussing the process, provide important examples to others. We’re hoping to develop a mechanism by which members of such communities can get free high-quality legal advice about how fair use applies to particular creative projects they have underway. We’re also looking at international copyright law exemptions that permit use of copyrighted material without permission or payment, to assess the problems that people who don’t have fair-use provisions face.

Pat Aufderheide, one of American University’s Scholar-Teachers, is a critic and scholar of independent media, especially documentary film, and of communications policy issues in the public interest. Her work on fair use in documentary film has changed industry practice, and she has won several journalism awards. She is the founder, in 2001, of the Center for Social Media, which showcases media for democracy, civil society and social justice. She recently received the Career Achievement Award for Scholarship and Preservation from the International Documentary Association.

Peter Jaszi is faculty director of the Glushko-Samuelson Intellectual Property Law Clinic and professor of law. He holds expertise in intellectual property and copyright law. He was Pauline Ruvle Moore Scholar in Public Law from 1981-82; Outstanding Faculty Scholarship Awardee in 1982; and he received the AU Faculty Award for Outstanding Contributions to Academic Development in 1996. He is a member of the Selden Society (state correspondent for Washington, D.C.). Previously he was a member of the Copyright Society of the U.S.A. trustee, 1992-94; International Association for the Advancement of Teaching and Research in Intellectual Property; National Zoological Park, Washington, D.C., Animal Welfare Board, 1986-present; Library of Congress Advisory Committee on Copyright Registration and Deposit (ACCORD), 1993. He has written many chapters, articles and monographs on copyright, intellectual property, technology and other issues. He was editor of The Construction of Authorship: Textual Appropriation in Law and Literature Durham, N.C.: Duke University Press, 1994 (with M. Woodmansee) (also published as a law journal issue, 10 Cardozo Arts and Entertainment Law Journal 274, 1992). He is co-author of Legal Issues in Addict Diversion (Lexington Books, 1976) and Copyright Law, Third Edition (Matthew Bender & Co., 1994).