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  • Fair Use, Film, and the Advantages of Internet Distribution
  • Fred von Lohmann (bio)

Most filmmakers know at least a little about "fair use," the copyright doctrine that permits the use of copyrighted works in certain circumstances without having to get the owner's permission. But when a filmmaker faces a difficult rights clearance issue, fair use is often of little comfort, thanks to the attitudes of traditional "gatekeepers"—insurers, exhibitors, broadcasters, and distributors. In the words of producer Jeffrey Tuchman, "I haven't used fair use in the last ten years, because from the point of view of any broadcast or cable network, there is no such thing as fair use."1

Traditional media gatekeepers generally insist that clearances be obtained for every scrap of copyrighted material that appears in a film, even where the fair use doctrine should make a clearance unnecessary. Because of this attitude, many films are never made, and many others, even if made, are never distributed. As a result, the American public has never enjoyed the full measure of expression that fair use is meant to protect. And it appears that this "clearance culture" is only getting worse where traditional media outlets are concerned—insurance rates are increasing, legal fees are rising, and clearances are eating up ever larger portions of filmmakers' budgets.2

Fortunately, new Internet distribution channels may breathe new life into fair use for filmmakers. Already, creators of short films have successfully used the Internet to reach millions of people (just think of JibJab's ubiquitous "This Land"—an animated short poking fun at President Bush and Senator Kerry). Two Internet distribution methods show particular promise for filmmakers seeking to break free of the strictures of the clearance culture. First, there are the new online video hosting services like YouTube and Yahoo Video. By uploading a film to any of the more than 100 Web sites catering to "user generated video," a filmmaker can reach a global audience without having to satisfy the rights clearance requirements imposed by traditional gatekeepers. Second, filmmakers who want even more control over their online destiny can opt to make their films available directly from their own computers, purchasing bandwidth directly from an Internet service provider (ISP).

How does Internet distribution change the kinds of rights clearances a filmmaker must obtain? Because copyright law treats services like YouTube and ISPs differently from traditional offline gatekeepers, these new Internet gatekeepers are not as conservative when it comes to demanding clearances. Consequently, a filmmaker who is willing to rely on fair use instead of clearances can now reach an audience more easily. [End Page 128]

This does not mean that a filmmaker can ignore copyright. Ultimately, the buck stops with the filmmaker; a copyright owner can still sue the filmmaker for infringement if a use goes beyond what is permitted by fair use. In the alternative, a copyright owner can complain to an online video hosting service, sending what is known as a "takedown" notice demanding that a film be removed. But if a filmmaker is willing to educate herself about fair use and stand behind her film, she can reach an audience today in ways that would not have been possible just a few years ago.3

In short, thanks to the Internet and the special copyright rules that apply to it, audiences may for the first time begin seeing all the films that fair use permits, rather than just those films that traditional gatekeepers are willing to show.

The Traditional Rules

Before turning to an explanation of how copyright law treats online video hosting services and ISPs, it may be useful to review the copyright rules that govern traditional media gatekeepers like film exhibitors, broadcasters, and distributors. After all, it is the unforgiving nature of copyright law that accounts for the conservative, risk-averse approach that these traditional gatekeepers take toward rights clearance issues.

Copyright law guarantees to copyright owners certain exclusive rights, including the exclusive right to make copies, distribute copies, publicly perform the work, and make new derivative works based on it. As a result, if a filmmaker includes an uncleared song in a film's soundtrack, she may be liable for infringing these exclusive...

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