Documentary Filmmakers Win Exemption From Digital Millennium Copyright Act

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Documentary Filmmakers Granted Access to Previously Off Limits DVD Content, Restoring Their Fair Use Rights

Documentary filmmakers today gained access to previously "locked" DVD content for "fair use" in their productions under an exemption to the Digital Millennium Copyright Act granted to them by the US Copyright Office.

The exemption was granted as a result of an action spearheaded by entertainment attorney Michael Donaldson, who assembled a coalition of documentarians and filmmaker organizations led by the International Documentary Association and non-profit Kartemquin. Donaldson provided legal counsel for the effort on a pro bono basis, along with the USC Gould School of Law Intellectual Property & Technology Law Clinic led by Professor Jack Lerner.

The exemption allows documentarians to obtain short portions of material from DVDs, even when that material is behind encryption and other digital locks, for any noninfringing use in a documentary. That includes copying public domain materials and to make fair use of other material contained on such DVDs for use in a documentary. This was a crime under the Digital Millennium Copyright Act of 1998. Documentary filmmakers can take advantage of this exemption through October of 2012, when the next DMCA rulemaking will take place and the filmmakers' exemption will be up for renewal.

Many filmmakers, particularly those who incorporated current or historical events into their work, were previously restricted by the DMCA from using a wealth of material available only on DVD. Today's decision enables them to use everyday cultural material contained on DVDs to tell their stories.

"The organizations and filmmakers who have joined together on this issue represent the cornerstones of the documentary filmmaking community in the United States," said entertainment attorney Michael Donaldson. "The filmmakers knew it was time that they confronted this problem that hampered their work on a daily basis, so we decided to come together as a united front - filmmakers and advocates alike - to change the law. Collectively, this group - five major documentary and independent filmmaking organizations and six award-winning documentary filmmakers - has garnered Peabody Awards, Academy Awards, National Board of Review honors, Sundance Film Festival Awards, MacArthur Foundation recognition for excellence, and some of the most honorable, international distinctions in film over the past 50 years.

"In a digital world without this exemption, fair use existed largely in theory but not in practice. The DMCA forced filmmakers to attempt highly inferior technical methods to avoid breaking digital locks, or prohibited them from using such material at all," said IDA Board President Eddie Schmidt, also an award-winning filmmaker. "Decriminalizing the use of digital excerpts for documentary filmmaking purposes shows that the Copyright Office continues to understand the historical, cultural, and journalistic implications of this provision in copyright law and its integral nature to freedom of expression."

"This exemption will affect documentary filmmakers across our community," said Kartemquin Films Co-Founder and Artistic Director Gordon Quinn. "The DMCA had made it difficult for filmmakers to exercise their fair use rights. Today's ruling removes the unwarranted threat to the exercise of those essential rights - rights that we must be able to use if we are to continue to play a vital role in our democratic culture as reporters, critics, commentators, and educators."

"This was an important victory for free expression and the essential role that documentary film plays in our democracy," said former USC Law student Chris Perez, a lawyer with Donaldson & Callif who also served on the pro bono legal team while at USC. "To make social, political or cultural critiques, filmmakers need to quote from copyrighted material such as motion pictures. It's well established that this type of use is permitted by the fair use doctrine in copyright law, but the DMCA was preventing it."

Students from USC Intellectual Property and Technology Law Clinic, under the supervision of Professor Jack Lerner and in close collaboration with Michael Donaldson, are now turning to educational and training efforts designed to help documentary filmmakers understand how to use the exemption properly.

Library of Congress
Copyright Office
CFR Citation: 37 CFR Part 201
Docket ID: [Docket No. RM 20088]
Document Action: Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies.

About the team

Michael C. Donaldson, Donaldson & Callif
Michael C. Donaldson is an entertainment attorney who has been fighting for independent filmmakers for over 30 years. In addition to representing writers, producers and directors, he serves as General Counsel to Film Independent (home of the Independent Spirit Awards and the Los Angeles Film Festival) and the Writers Guild Foundation. Michael is a founding partner of the Beverly Hills-based entertainment law firm Donaldson & Callif, where he is the industry's go-to attorney for fair use and other clearance-related issues. In appreciation for his tireless work on behalf of documentary filmmakers, the International Documentary Association (IDA) recently presented to Michael its Amicus Award, an honor granted only two other times in the IDA's 25-year history.

Contacts:
Michael C. Donaldson            
Donaldson & Callif            
(310) 277-8394 office            
michael(at)donaldsoncallif(dot)com        

Lisa A. Callif
Donaldson & Callif
(310) 277-8394 office
lisa(at)donaldsoncallif(dot)com

The USC Intellectual Property & Technology Law Clinic
The USC Intellectual Property & Technology Law Clinic is part of the USC Gould School of Law. In the Clinic, led by Professor Jack Lerner, law students counsel and represent filmmakers, entrepreneurs, nonprofit organizations, and others on a variety of intellectual property-related issues. In particular, the Clinic works with documentary filmmakers who cannot afford entertainment attorneys as they attempt to make fair use of copyrighted material in their documentaries.

Contacts:
Gilien Silsby                
Director, Media Relations        
USC Gould School of Law        
(213) 740-9690 office            
gsilsby(at)law(dot)usc(dot)edu            

Jack Lerner
Clinical Assistant Professor of Law
USC Gould School of Law
(213) 740-9013 office
jlerner(at)law(dot)usc(dot)edu

International Documentary Association
International Documentary Association ("IDA") is a nonprofit membership organization dedicated to supporting the efforts of nonfiction film and video markets throughout the United States and the world; promoting the documentary form; and expanding opportunities for the production, distribution, and exhibition of documentary. Since its founding in 1982, IDA has served as a forum and voice for documentarians around the world. IDA currently serves over 2,800 members in over 50 countries.

Contacts:
Eddie Schmidt                    
President                    
IDA                        
(213) 534-3600 office                
eddie(at)documentary(dot)org            

Michael Lumpkin
Executive Director
IDA
(213) 534-3600 office
michael(at)documentary(dot)org

Kartemquin Films
Kartemquin Educational Films, a not-for-profit organization, is a home for independent filmmakers developing documentary as a vehicle to deepen the understanding of society through every day human drama. Focusing on people whose lives are most directly affected by social and political change and who are often overlooked or misrepresented by the media, Kartemquin's films open up a dialogue, both in communities and between the general public and policymakers. An internationally recognized media arts organization, Kartemquin acts as a trusted bridge between communities and the media, and encourages advocacy for a strong public media.

Contacts:
Gordon Quinn                    
Co-Founder and Artistic Director        
Kartemquin Films                
(773) 472-4366                    
gordon(at)kartemquin(dot)com

Jim Morrissette
Technical Director
Kartemquin Films
(773) 472-4366
jim(at)kartemquin(dot)com            

The coalition includes:

Organizations

  •     Kartemquin Films
  •     International Documentary Association
  •     Film Independent
  •     Independent Feature Project
  •     National Alliance for Media Arts and Culture
  •     University Film and Video Association

Filmmakers

  •     Robert Bahar (Made in L.A.)
  •     Kirby Dick (This Film is Not Yet Rated, Outrage, Twist of Fate)
  •     Arthur Dong (Hollywood Chinese)
  •     Jeffrey Levy-Hinte (Roman Polanski: Wanted and Desired, Mysterious Skin)
  •     David Novack (Burning the Future: Coal in America, Kimjongilia)
  •     Morgan Spurlock (Super Size Me)

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MARLAN WILLARDSON
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