In 2010, Rodney Ascher went to the Sundance Film Festival with his documentary short “The S From Hell,” which examines a bizarre childhood terror: the 1964 Screen Gems logo and its otherworldly sonic chime. Much of the film is comprised of voiceovers of people recounting their fears with clips from Screen Gems shows like “Bewitched” and “The Flintstones.”
Despite not seeking approval from the studio, Ascher didn't run into any trouble with the footage. Not only did he believe it was well under the definition of fair use, which permits the use of copyrighted material without permission, it also wasn't much of an issue: like most short films, it never saw distribution outside the festival circuit and thus wasn’t making money off the material.
That's not the case for “Room 237,” Ascher’s feature debut. The 102-minute documentary deconstructs hidden meanings in Stanley Kubrick’s 1980 adaptation of Stephen King’s horror novel “The Shining” — mostly by showing sequences from the actual film, a copyrighted work owned by Warner Bros. Since its Sundance debut in January, Ascher’s film has been acquired for distribution by IFC Midnight and snagged slots in the Cannes Film Festival’s Directors’ Fortnight and Toronto film festival’s Vanguard sidebars. It will have an awards-qualifying run at the end of the year followed by a March release.
For this one, Ascher has no choice but to go down the rabbit hole of proving that the footage he’s used falls under fair use, which would prevent him from having to pay hefty licensing fees to WB or being sued for showing the film in theaters.
“Room 237” explores every nuance of Kubrick’s film by unspooling lengthy clips while voiceovers from conspiracy theorists break down outlandish subtexts that range from the Holocaust and the genocide of the American Indian to Kubrick using the film as an admission that he “directed” the Apollo 11 moon landing. It’s a fascinating paean to cinematic obsession, but Ascher did not seek licensing permission through Warner Bros. before the screening at Sundance, declaring the clips fair use. (Neither Warner Bros. nor IFC would comment for this story).
Fair use is defined as copyrighted material that filmmakers, news gatherers, critics or educators can use for free if they add context to the material — most commonly, a voiceover. But they can only use enough content needed to illustrate sufficiently the point being made.
To better help define fair use for filmmakers, a coalition of professors and filmmaking groups created the Best Practices in Fair Use Doctrine in 2005. Entertainment lawyer Michael C. Donaldson, who helped create the document, points out that films with fair-use content often get distribution without drawing lawsuits — but no one talks about it.
“It has been portrayed as a ‘dirty little secret,’ ” says Donaldson, who represents “Room 237.” (He would not comment on the film for this story.)