Hollywood is the personification of success for many writers, screenwriters, comic book creators, and documentary filmmakers. Having your creative work transformed into a blockbuster movie is a nice dream, especially when you have a story worth sharing. But it can be an elusive one.
The road to Hollywood can be long and full of potholes and dead ends. One documentary filmmaker traveled that bumpy road and made it all the way there. He was able to sell his work to Hollywood, in part, by anticipating that his film needed to be more than good. It needed to be ready to sell. That meant learning about copyright, the risks of using other people's creative work, and minimizing those risks.
Hollywood Calls for It, COVID Stalls It
It began as an art college project by Lotfy Nathan, a student at the Maryland Institute College of Art (MICA) in Baltimore. He created a full-length documentary called 12 O'Clock Boys which was accepted for screening at the SXSW Film Festival in 2013.
Will Smith saw the documentary and his production company optioned it. Charm City Kings, the Hollywood movie developed from the option, was released at Sundance in January 2020, seven years after the documentary premiered. Charm City Kings was scheduled for general release in April 2020, but then . . . COVID. The new release date is August 14, 2020. But the theaters still won't will be open. I understand that HBO has plans to stream the full feature later in 2020.
Getting the Work Ready to Sell to Hollywood
Back in 2013, when Lotfy was getting his film ready for its premier at SXSW, he asked me to review and clear some of the scenes in his rough cut. The scenes contained rights-protected material created by other people. Clearance work done by an attorney, in this instance, means assessing the risk of using someone else's protected content. Clearance involves fair use analysis and recommendations for licensing or removal of material.
If your work isn't properly cleared, a parade of horribles can follow you and your work. Leading the parade is the prospect of a lawsuit for copyright infringement. More likely though, the film could be pulled from the festival if infringement claims are made. That would be heartbreaking.
For example, here's what the Sundance Film Festival says about clearance:
If your submitted project contains unlicensed or uncleared materials, it is the responsibility of the owner or owners of the project to license, clear, or otherwise replace these materials in the event that Sundance or any other entity chooses to accept the project for festival exhibition.
Sundance requires all entrants to sign a waiver stating that the materials contained in the project do not violate trademark or copyright. The responsibility belongs to the creator of the project.
Legal clearance is a best practice in both the filmmaking and publishing industries. When your work is cleared, you are more likely to convince an interested producer to option it. An option, for a documentary film or a book, is one step closer to actually selling your work Hollywood.
Fair Use In Documentary Films
Let's quickly review fair use, the crux of clearance work. A fair use analysis requires consideration of four factors:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
If a use is not fair, then permission or a license must be obtained. If no license can be secured, then the material must be removed.
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Use this quick and easy guide to help you decide whether a use you plan to make of someone else's work is fair, or if someone has made fair use of your work.
Copyright law encourages public comment which is the point of documentary filmmaking -- truthful story telling with a distinct point of view, a message about the story. The purpose of a documentary, when it quotes pre-exisiting creative work, should be more than just a factual record of the event detailed in the pre-existing work. With this in mind during the making of the film, a filmmaker is likely to satisfy the first prong of the four-factor test.
The first factor also requires the use of the protected material to be transformative. A transformative use is one that changes the character of the copyrighted material. Using short clips and quotes in the context of critiquing those clips and quotes is transformative. Without adding something new and different to the protected material -- fresh insight, commentary, or criticism -- the work is not going to be considered transformative.
Let's apply the factors to each clip.
Racist Rant from Radio Personality
The radio "personality" in the voice over on this clip is Ed Norris. He served as the Police Commissioner for Baltimore from 2000 to late 2002. In 2003, Norris was convicted of misusing tax payer money and spent six months in federal prison. He graduated from prison to become a talk-show host on conservative radio.
In my opinion, the use of this unlicensed clip from Norris's radio show is an appropriate exercise of fair use.
Let me explain:
The scene sets the stage for classic media critique. The premise of the film is to present a counterpoint to the sentiments expressed in the audio clip.
The unlicensed use of the audio clip is transformative because the use in the film is for a different purpose than the original use on the radio. The original use was “entertainment.” Entertainment that, in this case, foments the emotions of the listening audience on the subject of urban dirt bike riders by using negative characterizations and slurs.
Norris's purpose is to acquire a bigger audience, engage his existing audience, and drive up advertising revenue. The clip is used in the film to present the negative perception of the urban dirt bike riders in order to comment on and critique that perception.
Putting the clip in the film, allows the fimmaker to respond to it by saying, in essence, “No, Ed Norris, you are wrong and here’s why.” That's transformative use.
The second factor weighs against the filmmaker. Norris's expression is protected content.
Thirty-nine seconds is a limited and appropriate amount to use in light of the length of the film and the length of Norris's radio show (four hours in the morning, at the time) satisfying the third factor in the fair use test in favor of the filmmaker.
There is really no argument that the use of the clip in the film will negatively impact or undercut the market for Ed Norris’s radio show. The fourth factor will weigh for the filmmaker.
TV News Reporting Montage
The next clip is a montage of local Baltimore TV reporting and is also an appropriate exercise of fair use. Again, in my opinion.
The context of this montage of news clips is Pug saying, “When you are in the pack, you can really shine.” Then the news clips follow as a juxtaposition of the perceived danger and menace to the public caused by the riders against the freedom, spirit and almost performance art of the individual riders from Pug’s point of view. Thus, the use is transformative.
The second factor weighs in favor of fair use because the news program's expression of the facts (scenes of what the riders actually do) should not be allowed a monopoly even though there are creative elements in the video footage and the reporting.
The third factor weighs in favor of the filmmaker because the length of the news clips used is only 33 seconds, combined into a visual and audio collage. Shorter clips are more likely to be fair use than longer clips.
The fourth factor balances the economic interests of the copyright holder with those of the documentary filmmaker. Because the film is not threatening to replace the TV station's work in the market, the fourth factor weighs in favor of the filmmaker.
Background Music: Incidental or Intended?
In this scene, Coco is in a bar when a song by Sade starts playing on the juke box. The scene then transistions to a cutaway with the song still playing. The song must be licensed in order to be used during the cutaway.
The background song is incidental use if it was not requested or directed in the scene where Coco is dancing. Incorporating incidental sounds and images in documentary footage is fair use. However, the continuation of the song in cutaways to other scenes and as background music for those other scenes while Coco is talking is not fair use and needed be licensed or the scene changed.
Lotfy secured a festival license just before SXSW, so he did not have to change this powerful scene.
The Documentary Filmmakers' Statement of Best Practices in Fair Use is one of the best, most accessible, and easily understood guides on how to analyze fair use in your own work. The Center for Media & Social Impact has released a number of codes of best practices in fair use in different disciplines including online video, visual arts, poetry, and journalism. You should check them out.
As a creator, you have a responsibility to understand your creative rights and to respect the creative rights of others. Ultimately the goal is to sell, or license, your work. Maybe to Hollywood. In order to do that, your work must be clear of infringing uses of the creative work of others.
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