Dec 7, 2006
Here’s an interesting case. In short, a documentary film exec. is balking at the hefty licensing fees companies are asking for use of clips, so he’s decided to use the fair use doctrine as both carrot and stick. He offers to pay companies drastically reduced fees or won’t pay them at all, relying on fair use. If his gambit works, it’s hard to see how the film clip licensing niche will work out. I wouldn’t be surprised to see a pretty good case come out of this as it appears to be a tenuous line between free speech and profit motive in this particular application of fair use.
“We’re taking on the fight not only with ‘Wanderlust’ but also with the upcoming ‘This Film Is Not Yet Rated,’ ” said Mr. Shapiro, referring to a clip-dependent critique of the film ratings system set for release in theaters later this year. “That was made, from the start, under the fair-use doctrine, as all of our documentaries will be from now on.”
Mr. Donaldson began contacting the studios at the Berlin film festival in February, initiating talks that dragged on for months. Accept $1,000 a title, he said, or IFC will move ahead anyway. Though Paramount held firm, 13 of the 18 copyright holders accepted the offer, including Sony Pictures Entertainment, MGM, Universal Studios, Miramax Films and Warner Brothers Entertainment, whose price was cut from $149,850 to $8,000. In the end the clips cost IFC less than $50,000. The holdouts advised IFC to rely on the fair-use argument, which, after viewing the film, they said they might legally challenge. (Mr. Shapiro is ramping up his insurance and putting away money in case that happens.)
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