New Copyright Rule Is Good News for Filmmakers

The US Copyright Office recently published a rule that allows broader use of video clips from previous works in fictional films.

This is good news for filmmakers — and especially for makers of low-budget films.

Clearances

“Film clearance” is the process of getting all the rights necessary for the production of a film. Things that need to be cleared may include a wide array of sounds and images that may be used in sets, posters and other marketing materials, the soundtrack, etc.

All intellectual property created by anyone other than the filmmakers must be cleared.  For example, this could include a poster on the wall of a set or music that’s heard in the background in a street scene.

Filmmakers who fail to get proper clearances risk being sued.

As I noted in this blog, Director Terry Gilliam was sued over the use of a street art mural shown in his movie The Zero Theorem.

Some movies present much bigger clearance issues than others.

Ralph Breaks the Internet

For example, movies like Ralph Breaks the Internet and Ready Player One are packed full of characters and images taken from other works protected by intellectual property rights.

As the LA Times noted,

For the team behind “Ready Player One,” the complex job of working out which specific references to pack into the film involved both story considerations (some elements of the book translated better to the medium of cinema than others) and legal factors (some rights-holders were more amenable to having their material used than others).

DMCA

The Digital Millennium Copyright Act (DMCA) was enacted in 1998. Among other things, it prohibits circumvention of technology measures used by copyright owners to protect their works.

Such measures include forms of encryption on DVDs.

Exemptions under the DMCA are allowed for uses that are likely to be non-infringing, when the prohibition against circumvention has an adverse impact on those uses.

Fair Use

For example, some uses of copyrighted material are considered to be “fair use” and thus don’t require a license.

As Anthony Falzone, executive director of the Fair Use Project explains in Ad Week,

If you think about copyright as a series of restrictions, fair use is a set of exceptions.  It protects your right to use copyrighted material in certain ways and it’s not a trivial little technicality—it’s a fundamental part of the copyright bargain.  We don’t give copyright owners unlimited control over their content—we preserve a whole variety of uses and things that people get to do with copyrighted content without permission.  And fair use is really, above all else, a set of factors and considerations that help us figure out which things we carve out of the copyright monopoly, and which things we let people do without permission.

Filmmaker organizations sought expansion of the current DMCA exemption to permit circumvention for use of motion picture clips in all types of films — not just documentaries, as previously.

In response,

The Acting Register recommended that the existing exemption for documentary films be expanded to include a subset of fictional (e.g., narrative) films for purposes of criticism and comment, where the clip is used for parody or its biographical or historically significant nature. She concluded this limitation would best reflect the examples in the record, many of which appear to involve the use of clips for purposes of criticism and comment, while preserving the requirement that filmmakers continue to seek authorization before using excerpts for general storytelling uses. The Acting Register found that the use of small portions of films for these purposes is consistent with principles of fair use and is unlikely to supplant the market for motion pictures, but cautioned that filmmakers would continue to need to obtain authorization for uses of clips outside of these uses.

This means that more filmmakers will be able to use short clips from other works without violating the DMCA.