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Documentarians Insured for Fair Use

Kirby Dick's excellent documentary "This Film Is Not Yet Rated" is certainly having an effect on the industry--though perhaps not quite the one he initially intended.

Media/Professional Insurance, a company that normally insures production units for projects underway, will now offer coverage for documentary makers who want to use clips of film or images which are not in the public domain. Normally such filmmakers would have to pay licensing fees for such usage--often totaling several thousand dollars.

A film such as Dick's--giving examples of exactly what kinds of scenes engender what kinds of ratings from the MPAA-- would have been difficult without such clips, and certainly impossible to make if all the fees had been required. Dick paid no fees for the clips he used, making the implicit argument that his use was "fair."

Long in place in the publishing industry, Fair Use is a flexible instrument whereby a small amount of intellectual property or copyrighted material is appropriated into a wholly new piece of work, such as a poem or novel. The usual kicker being that somewhere in the new work (usually on the legal copyright page) an acknowledgment of the original source is made clear--otherwise the author gets accused of plagiarism.

Such an instrument has apparently not been standard practice in the film industry, however. In the Variety article sourced below, Michael Donaldson, general counsel for the International Documentary Association, expresses surprise that Dick wasn't called on the carpet for his clip usage in his documentary: "I fully expected one of those chest-beating letters from an attorney for a studio, but we never got one." He goes on to admit that Dick "took a very conservative approach on how the clips were used." The film will likely thus become a benchmark in that sense ... even if it doesn't exactly singlehandedly lead to the overhauling MPAA practices (something that still needs to happen).

Source: Variety.


Posted by on February 23, 2007 1:32 PM
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