In Focus: Fair Use and Film

Introduction: Permission Culture

In 1989 Gerald Mast concluded an essay on fair use and film studies with the following statement:

Since neither the law nor the film industry really cares what film scholars and educators do with these materials [16 mm films, videotapes, and stills], we ought to do as much as we can. We need to convince, not courts of law and members of the film industry, but our own editors and deans of our rights to do so.¹

Today, Mast's statement remains half right.

First, it can no longer be said that the law and the film industry do not care what film and media scholars do with copyrighted material. Mast wrote about 16 mm film and videotape shown in "face-to-face" classes. But the adoption of digital media has leveled the field. Formats are no longer relevant separators of commercial and noncommercial uses of media. High-quality digital images are readily available for classroom and scholarly use. In addition, the Internet is be-coming the distribution medium for both course materials and Hollywood films. Digital media and the Internet are increasingly regulated by laws and policed by the film industry. The Digital Millennium Copyright Act of 1998 and other recent additions to copyright law have begun to regulate all digital media, regardless of context or use. And the film industry, through the Motion Picture Association of America, enforces these regulations actively and universally. As a result, academic uses of media are no longer immune from strong control, and academics have joined archivists, documentary and independent filmmakers, and consumers as casualties of the attack on fair use in the digital age.

The second half of Mast's formulation—that the gatekeepers (editors and deans), not the law, control fair use—remains as true today as it did eighteen years ago. Fair use is not a clear legal doctrine. It is a defense of the unauthorized use of copyrighted material, developed to facilitate criticism, news reporting, scholarship, teaching, and some personal copying, among other uses. These are instances where asking permission to quote from copyrighted work might impede or even censor the free flow of ideas. Who, for example, would readily give permission for quotations to be used in a scathing critique of his or her book or film?

Because fair use is defined on a case-by-case basis, it always entails risk. It is frequently the publishers and distributors, not the creator of the work, who take the risk—ultimately the risk of a lawsuit. But it is one of the responsibilities of editors, deans, university general counsels, and insurance companies to avoid legal action. When weighing the costs and benefits, it will always make more sense economically to pay relatively minor licensing fees or avoid using copyrighted material entirely than it will to defend fair use and risk going to court. The inescapable timidity of gatekeepers has led to an environment many have begun to call "clearance culture" or "permission culture" in which every use of copyrighted material is asked and paid for.² A permission culture limits academic freedom, artistic freedom, and the freedom to record and criticize culture.

Luckily, the future of fair use is not as bleak as it sounds. The short essays that follow chronicle and analyze some of the most promising attempts to bolster fair use for media scholars, filmmakers, and archivists by both changing the law and removing some of the risks for gatekeepers.

My own essay assesses the limitations the Digital Millennium Copyright Act (DMCA) has placed on fair use. The DMCA trades the broad fair use doctrine for a series of narrowly defined exemptions. But there is no DMCA exemption for media education. In the essay, I recount my attempt, along with two colleagues, to apply for a DMCA exemption that would allow media educators to make clips from DVDs or other encrypted media for teaching—a practice outlawed by the DMCA. Many Cinema Journal readers no doubt make digital clips already, which is all the more reason that it should be a legal practice. The essay is about both DMCA exemptions and...