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October 20, 2010


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Chris O.

A few years ago, the NYT published an article, "The Hidden Cost of Documentaries", about such, uh, inconveniences; and featured a particularly egregious example of the makers of "Mad Hot Ballroom" having to remove a ringtone because the song's publisher was asking for $10k in order for them to use six seconds of it.


warren oates

None of this clearance bullshit has anything to do with what the founding fathers or the framers intended for copyright protection. It's time for all those originalists and strict constructionists on the court to pony up and stop rewarding corporations for having the owner's certificate for something somebody else once made. Copyright is about protecting the rights of original creators (not come-lately "owners") AND encouraging new creation. That second point--about encouraging new work inspired by and built upon the old--often gets lost in the same way that the freedom of religion crowd forgets about freedom from religion. News, commentary and satire have an easier go of it. Hip-hop forged some ground with sampling, but there's no clear case law on it and always the risk of a lawsuit. A/V sounds and images are oddly privileged, overdetermined in a way that might look quaint in a couple hundred years. Why is it okay to have a character in a novel wear a T-shirt like the ones you list or sit down and watch a scene from a movie like the one you acted in, but if somebody put that into a radio show or a documentary film without clearing it they'd be sued? Retarded. And fundamentally unAmerican. Time to go finish reading REALITY HUNGER.

Ed Howard

"My own understanding of the legalities of using a copyrighted artwork within a film or teleplay or whatever stipulates that such a thing ought to fall under the category of "fair use;" I surmise that nobody these days wants to be the test case for this theory."

I think that's it in a nutshell. It's bull. There's no question that wearing a t-shirt in a movie should certainly be protected by fair use, particularly since one of the conditions of fair use is that the quotation or excerpt, as used, must not limit the market for the original item. It should be obvious, of course, that seeing a t-shirt in a movie is not the same thing as wearing it, just as reading a brief quotation from a novel in a review is not the same as reading the novel, and just as a brief sample of a song used to create the drums for a hip-hop track is not the same thing as the original song. The problem is that media companies haven't just waged war on the concept of fair use - they seem to believe that it doesn't even exist as a concept (except, one supposes, when they need a quote or an excerpt for one of *their* products). It's a sad state of affairs, and of course it's too often the case that those who would most benefit from a broad and strong fair use doctrine - documentary filmmakers, independent artists and musicians, etc. - are precisely the people least in a position to risk big media's inevitable legal challenges.

One of the most egregious denials of fair use I've seen recently was Fox News' assault on a Democratic candidate who used a brief clip of his opponent speaking on a Fox show in a campaign ad. Fox sued to get the ad pulled, and succeeded, claiming that they had the right to deny candidates from using Fox's footage - this despite the fact that almost all campaign ads use similar footage, and that it should clearly be protected by fair use, and that Fox allows Republican candidates to use their footage all the time. Our court system needs to stop bowing to this kind of nonsense and start reinforcing fair use as a legal doctrine.

Adam Greene

Ah clearances. This is what I do for a living. As a union Art Department Coordinator a huge portion of my job is to wrangle the clearance side of the art department (as opposed to costumes in case of your story). It is a pain, and worse so in television where in addition to clearing it through legal at the studio, the network also has to be contacted in case they don't want to "advertise" whatever product you want to use (like Adobe Photoshop). This kind of thing often careens into the absurd but I see no end in sight, the horizon is thick with the litigious. Yay, progress!

That Fuzzy Bastard

This is honestly something that makes me apoplectic---I've been kicking around ideas for some time for a doc on the subject, with a particular focus on how news footage gets censored. One of the basic facts of modern reality is that branded items are ubiquitous---especially for those of us living in cities, you literally can't look anywhere without seeing something branded. The fact that we're prevented from accurately representing our reality in our art is a genuine threat to artistic freedom, to the very idea of mimesis. Man. Seriously.

Don R. Lewis

We just wrapped our documentary on the world's ugliest dog competition ("Worst in Show!" Coming your way soon....I hope) and we were gobsmacked by all the rights issues we've encountered. For instance, one of our characters got to go to a major league baseball game and lead a parade of dogs around the field. For every 30 seconds of footage we use in our film, we owe the team $250. And that's just for the 1-year festival distribution rights. Who knows what it is for DVD or on-demand.

Another instance was when a character in our film was on the Today show. 30 seconds of footage from them = $350. If one of the anchors is in the shots at all, another $350. So $700 for 30 seconds. Plus rights to use songs and making sure we absolutely do NOT use any imagery from this one asshole sponsor....it's been brutal. Hidden costs indeed.


I often see movies which feature TV shows on monitors (network logos appropriately visible in the lower right corners) and/or TV reporters with said logos on their mikes. So is this "fair use?" Does anyone really pay NBC or CNN to use their logos?

Brian P

product placement in movies drives me bananas - though i'm a touch more forgiving if it's a small indie and the imperative to get the movie made is implicit - but to me brands/trademarks should pay the films for the opportunity of inclusion instead of filmmakers taking ridiculous hits like the ones Don Lewis cites above. Glenn's example illustrates how something as basic as T-shirt selection can impact the creative intent and result. Maddening.

on a side note: Glenn, you're in TGE? that's badass! are you sag?

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