In Canada, it’s called fair dealing. In the States, fair use. It’s a concept with guidelines in the Copyright Act that allows you to use available footage in your documentary for free. The general rule is that you must be analyzing or commenting on the footage to support your own thesis, for the public good, without exploiting the original creator. But as for hard guidelines, there aren’t any.
Brian Wynn, a senior entertainment lawyer in Toronto, points out that Canadian rules for fair dealing don’t really exist, because they haven’t been tested in court. “It takes at least a hundred thousand dollars to take a case to the Supreme Court to establish a precedent,” he says. “And Canada is just not as litigious as the Excited States.” He points to the success of the L.A. lawyer Michael Donaldson. “Documentary producers did some useful analysis on fair use situations to create a set of industry guidelines,” says Wynn. “Then Donaldson said his law firm would give opinions for use by insurance companies if you adhered to those guidelines. It was a constructive attempt to normalize the law so you didn’t have to wade through court decisions. But retaining Donaldson will cost you a pretty penny.”
In 2010, the Documentary Organization of Canada (DOC) published guidelines for fair dealing, which a self-confessed “very conservative” lawyer such as Wynn, who works on behalf of the insurance companies (there are four in Canada), says will be expensive to codify into law.
“DOC engaged in a similar exercise. The producers started waving it around, and while it’s fine to say this ‘should be the law,’ the lawyers are concerned that until it’s been before the court, it’s not the law.” Wynn points out that the premiums paid by Canadian filmmakers are much lower than American rates. “The insurance companies say we’re not getting paid enough to finance cases that make the law. We don’t care if you win the case, we don’t want the case.”
In order to work with materials that are already in existence, like music, or film and TV clips, you need legal permission. This gets you the Errors and Omissions Insurance you need to sell your film to TV and to distributors, though not—as many producers interviewed for this story note—in Europe. Once, you could screen your doc at festivals and hope to pick up a distributor willing to cover your E&O. But now, as people get more litigious, even film festivals fear legal action. And fair use defenses can only take you so far. Amazing Grace, a reportedly excellent concert film of Aretha Franklin, was poised to debut at TIFF and Telluride in 2015 before being abruptly pulled due to its star not wanting it shown. A painstakingly restored 1972 concert film, originally filmed by Sidney Pollack and finished posthumously by his friend Alan Elliott, the filmmakers tried to use the fair use defense to override the singer’s veto. But in his March 2016 decision, U.S. District Court judge John L. Kane was scathing: “A film that essentially recreates the entire concert experience is not fair use of this footage.” It remains unreleased.
Toronto producer Vanessa Dylyn built her case from the ground up. For Leslie Caron: The Reluctant Star, her 2016 biopic of the French movie star Leslie Caron, she knew she’d need clips from the Hollywood films like Gigi and An American in Paris. A tip from her colleague Ron Mann led her to the aforementioned gold standard of the fair use defense, the L.A. law firm of Donaldson and Callif.
“You need to do your homework up front,” she cautions. “The first thing you must learn are the rules around fair use. How does use of the clip justify fair use? What will it cost to actually pay for them? You should ask any third parties who clear clips about this. And don’t phone the clearance people for Universal and alert them to what you’re doing!”
Sometimes, Dylyn says, if you directly contact the people who have the material, they will give you a break on costs. But a good deal on one clip from CBS News fell through when it was discovered that her researcher had already contacted the official channels.
Dylyn is proud of her eventual success. “My film is a master class on how to do it. [Director] Larry Weinstein and editor David New endlessly discussed it so they understood the principles perfectly.”
If Leslie Caron, her film’s subject, is discussing, for example, how Gene Kelly would prepare a scene, that’s the scene we are seeing. (Watch Leslie Caron: The Reluctant Star here.)
Misunderstandings about copyright issues abound. If your subject is extensively shot in front of a Tim Hortons, it will be queried by lawyers, especially if she barfs up her donut. But the blurring of faces and trademarked signs can get carried away. As a general rule, if the context isn’t disparaging, you’re okay. And incidental music, such as a car driving by in the scene playing a hit song—unless your subject starts singing along—is fair dealing as “incidental, not deliberate.”
Some clips you can claim fair deal on, and others you might have to pay for. It’s not all-or-nothing. You must mention the source of the material either in the clip itself or in the end credits. And it is a myth that you can use a certain amount, like twenty seconds or so, before having to clear the rights. But beware when buying music, some contracts have a “most-favoured nation,” clause, which decrees that every song in the film receive equal payment.
Veteran producer Ed Barreveld ran into this problem clearing the music for Rama Rau’s festival favorite League of Exotique Dancers. For three months, he scrambled to convince the estate of Duke Ellington to let him have the rights to a clip of “Satin Doll” for six thousand dollars. The estate insisted on ten. Barreveld tried to explain that because of the most-favoured nation clause, this would mean he’d have to pay $10K to all the other rights holders, nearly doubling his music budget. He tried nuanced arguments about the homage to Ellington, to no avail. He gave up only after receiving a cease and desist letter from the estate’s lawyer. “It made no sense for them to refuse,” he laments. “Just total greed.”
Producer Frederic Bohbot of Montreal has often been frustrated negotiating with archives, sometimes finding the same footage for different rates. “I don’t mind paying, but I do mind paying a hundred dollars a second,” he says, naming what is close to the standard rate. For a short film, he needed the famous shot of Marilyn Monroe in The Seven Year Itch. “Twentieth Century Fox wanted 12 thousand dollars for it,” he remembers. “But [researcher] Elizabeth Klinck told me that trailers made before 1964 are in the public domain. I ended up getting that shot for $500.” Bohbot suggests that if you can do it yourself, “hire a good researcher even for one day to point you in the right direction.”
Brett Gaylor remembers what motivated his 2009 festival hit on the copyright issue, RIP: A Remix Manifesto. “Naivety and optimism,” he laughs. “Scratch that… The idea was no gatekeepers. Suddenly, the internet was allowing you to reach an audience directly. It was the early 2000s, and there was an explosion of personal tools—computing, fast connecting, Napster. Music was easily accessed; the laws were there to regulate the bigger industry. The consumer had a sort of run. If you told me I would pay eight bucks for all the music in 2002 I would be amazed… The gatekeepers just figured it out.”
RIP, a scattershot mash-up exploring what you can do with copyright material, thrilled young festival audiences, but made it, as Gaylor recalls, a “tangled mess” to distribute. It all turned out to be more of an experiment. Today, he chills in Victoria, working for the Mozilla Corporation, a non-profit dedicated to internet freedom.
Remy Khouzam, an entertainment attorney in Montreal who has helped numerous producers with fair dealing cases over the years, acknowledges the increasing difficulties of working with archival footage. “There’s less money for archive, and the costs keep going up. An exception doesn’t exist for economic reasons,” he says. “I say to clients you can use any clip or music you like, it’s all about the strength of your argument… There’s a lot you can achieve with the fair dealing exception. It’s a powerful tool. It can lawfully allow you to use material without clearing it. But it’s not an all-you-can eat buffet.”
Vancouver’s Vic Sarin is a Canadian film legend. As profiled in the Winter 2016 issue of POV, the veteran DP and director’s newest doc is Keepers of the Magic, a celebration of the world’s great cinematographers. A long-time labour of love, Sarin shot revealing interviews with his idols—Vittorio Storaro, Gordon Willis, George Miller and Roger Deakins, among others—and wove together a catnip-to-cinephiles feature doc exploring the art and craft of cinematography. “I had four elements: my original footage, the stock footage I shot myself, some paid stock footage and the footage of the films they made. But we would have to come up with $300,000 just for the clips from The Godfather!”
He was able to get footage directly from Mad Max creator George Miller, and some others, though the issue of actors getting royalties has yet to be resolved. But he’s confident Keepers of the Magic is a perfect example of a fair use claim, as all the clips from the classic movies are being discussed in context of the people who filmed them.
Sarin and his producer Kim Roberts realized they couldn’t do this in Canada despite the broadcasters both being Canadian. They have approached L.A.’s Donaldson law firm for an opinion on claiming fair use. Sarin is sanguine. “There has to be common sense somewhere. I’m coming from the old school of honest and fair. Legality has gotten so extreme you can’t make films. The restrictions are absurd. I just did a personal NFB film, and they were asking me, did you get release forms in Brazil, or the Philippines, from people walking along streets? I said you must be kidding. It’s a documentary, not a fiction. Canada is more conscious of these things than anywhere in the world. Nobody else cares. We are so choked. We have rule of law, that’s fantastic, but how do I compete where they don’t have rule of law?
“It’s all about context. One must respect others’ work.”