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Programs Tue 6.28.2016

Making Fair Use More Fair: Understanding Copyright Reform with Attorney Jack Lerner

It goes without saying, but the current digital world has empowered creators with access to all sorts of dextrous technological tools—including the ability to easily access and repurpose preexisting work. In the hands of a talented, substantive filmmaker these derivative uses can be extremely valuable and illuminating. Think, for example, Thom Andersen’s landmark 3-hour video essay Los Angeles Plays Itself (compiled from literally thousands of preexisting film clips) or Room 237, Rodney Ascher’s feature-length deconstruction of Kubrick’s The Shining—or any of the innumerable documentaries which use copyrighted media to contextualize, illustrate and inform their storylines.

But the use of preexisting, copyrighted material—whether for narrative or nonfiction—can be legally tricky. Laws that exist to prevent piracy and protect intellectual property can also, applied indiscriminately, impede the free speech and full creative expression of creators whose projects are dependent on the ability to “quote” previous work.

Earlier this year, Film Independent signed on to comments prepared by attorneys Jack Lerner and Michael Donaldson with the goal of making positive changes to fair use law—one of several amicus briefs Film Independent has signed its name to in recent years with the same goal. Film Independent recently spoke to Lerner via email to learn more about the legislation, the proposed reforms and what filmmakers should be aware of when using copyrighted material in their own work. Here’s the conversation:

‘Los Angeles Plays Itself’

What’s the simplest definition of “fair use” creators should consider when deciding whether or not to use an excerpt of someone else’s work?

Fair use is the right to use a copyrighted work without permission or payment, when that use is for certain socially valuable purposes—like criticism, commentary or historical analysis. But it’s really about freedom of speech. You can’t talk about culture without also showing some of it, especially in filmmaking. That’s why fair use has been part of the law for over 150 years.

Can you describe what changes your team is pushing for to the current copyright laws?

Among many issues, we’re currently pushing for reform to the Digital Millennium Copyright Act, a law that makes it illegal to rip from DVDs, Blu-ray or any other media protected by technologies like encryption. That’s one thing when trying to prevent piracy, but the problem for us is that it harms fair use. Even though filmmakers have the right to use copyrighted material under fair use, we’re having more and more trouble accessing materials because so much content has encryption or DRM [digital right management software –ed.] on it. The result is that filmmakers either can’t do what they’ve been doing for decades, or unknowingly break the law.

Why is it important to grant filmmakers exemptions to that law and streamline the exemption-granting process?

Congress anticipated that the DMCA might cause this problem, so they created an exemption process in which users can get relief from the law. Since 2008, every three years Film Independent, International Documentary Association, Kartemquin Films and others have gone to Washington to seek exemptions. We’ve been successful getting exemptions, but it’s an incredibly long and arduous process that takes over a year. That’s why, together with Donaldson & Callif LLP, we recently submitted comments to the United States Copyright Office on behalf of Film Independent, International Documentary Association, Kartemquin Films and many others asking the Copyright Office to streamline the process and to make it more fair for people who are affected by this law.

‘Room 237’

You cited one example of these exemptions being the ability of documentarians to access material from DVDs and other digital sources, but how are these fair use exemptions applicable to narrative filmmakers?

In previous rounds we’ve sought exemptions not just for documentary filmmaking, but for all filmmakers. Narrative films regularly [employ] fair use, and producers of those films face exactly the same problems as documentarians. Unfortunately, these efforts have not yet been successful.

You cited a proposed “simple fix” that would make the exemption process unnecessary—what is this?

Simple indeed. The Copyright Office and some courts have interpreted the DMCA to mean that even if the underlying use is perfectly legal, just the act of circumventing encryption or similar technologies is still against the law. But some courts have gone the other way. They say that if there’s no connection between what you’re doing and copyright infringement, you haven’t violated the DMCA. In other words, if the underlying use is lawful (as with fair use), then just accessing that material is also lawful. We think the Copyright Office has the power to make this change right now. But if not, Congress should step in. As it stands, without an exemption, ripping is illegal even if what you want to do with the material is a no-brainer fair use. That’s not right. This one-sentence fix would solve many of the problems with the DMCA and it would make the rulemaking process unnecessary.

What’s the current state of this issue?

Congress is considering making changes to the DMCA, and they asked the United States Copyright Office to study the issue. The Copyright Office has conducted roundtable hearings in Washington, DC on May 19 and 20, and on May 25 in San Francisco.

If filmmakers want to get involved and add their voice to this call for reform, what should they do?

Lots! If you think you want to make fair use and need to access content from DVD, Blu-ray, online media, or cable, let us know! We’ll need to tell your stories in the next round. Also, if you want to get more involved with this issue, sign up to be on our list of filmmaker advocates. The time will come when we need to contact our Congressional representatives, set up phone trees, get the word out… and maybe even take to the streets.


Jack Lerner is a professor at the UC Irvine School of Law and Director of the UCI Intellectual Property, Arts, and Technology Clinic. Together with Donaldson & Callif LLP, the IPAT Clinic represented Film Independent and a large coalition of filmmakers in seeking exemptions to the DMCA, for which they won the California Lawyer “Attorney of the Year” Award.

Click here for more information about advances in copyright law, including the current state of reforms being made to the DMCA and current fair use law. For an in-depth description of the reforms discussed above, please see Jack Lerner’s blog post at the International Documentary Association’s website.

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