Fair Use, Documentaries, and Deals

The Times runs a fascinating story today on transactional strageties for preserving fair use:
“No Free Samples for Documentaries: Seeking Film Clips with the Fair Use Doctrine.”

Mr. Donaldson [counsel to the Independent Film Channel, working on behalf of an independent documentary titled “Wanderlust” that includes clips from a number of well-known feature films] began contacting the studios at the Berlin film festival in February, initiating talks that dragged on for months. Accept $1,000 a title, he said, or IFC will move ahead anyway. Though Paramount held firm, 13 of the 18 copyright holders accepted the offer, including Sony Pictures Entertainment, MGM, Universal Studios, Miramax Films and Warner Brothers Entertainment, whose price was cut from $149,850 to $8,000. In the end the clips cost IFC less than $50,000. The holdouts advised IFC to rely on the fair-use argument, which, after viewing the film, they said they might legally challenge. (Mr. Shapiro is ramping up his insurance and putting away money in case that happens.)

Three observations:

First, as the story notes, the filmmakers are moving ahead in part in reliance on the fair use strategy promoted by the Center for Social Media at American University: Develop, adhere to, and assert fair use as part of a “best practices” approach to the discipline.

Second, at least one of the owners of the copyright in a feature being excerpted in the documentary objects to what he characterizes as “blackmail.” “Using the argument to save ‘a few thousand bucks’ is ‘thoroughly dishonest,’ he wrote in e-mail messages sent to Mr. Donaldson’s firm. It’s tantamount, he said, to stealing.” It hurts, obviously, when the entitlement shoe seems to be on the other filmmaker’s foot! This isn’t blackmail; it’s negotiation, and the IFC has a BATNA that has some kick.

Third, is the $1,000 strategy wiser than at least one alternative — which is to ask for permission without compensation, and to rely on fair use if permission is denied? I think so, because the odds of the studios’ offering a license at a price — rather than for free — is greater. The evidence suggests that the approach has some merit: 13 of 18 studios took the deal.

Larry Lessig is quoted in the article: “But the danger of drawing a line in the sand is that others will try to erase it.” Sure. But use it or lose it, and I mean that not just as a matter of principle, but also as a matter of business strategy. IFC didn’t take this risk lightly, and it didn’t take this risk just to win praise from public interest advocates. This is another instance (Google Book Search being a bigger and clearer example) of a place where I part company with folks who look at the uncertainty in the law and are reluctant to test its limits. The first lesson I learned in my career as a litigator, almost 20 years ago, was this : You shouldn’t always pick only the fights you know you can win. Otherwise, you never win the close ones.