For years, filmmakers using unlicensed clips in their films avoided the wrath of cease-and-desist letters by showing their works in museums or playing one-offs at small arthouses and repertories. One film that inspired Ascher was Thom Andersen’s “Los Angeles Plays Itself,” which highlights how the city has been depicted in clips from some 200 films.
"I saw it once a few years ago at the Egyptian and was pretty blown away," says Ascher, who would not comment on the rights issues concerning his film for this story.
While Andersen’s film has built up cult status since having its premiere at the Toronto International Film Festival in 2003, most of its showings have been in nontheatrical venues; it was recently presented at the Whitney Biennial with other Andersen works.
“I think the fact that there is some legal ambiguity about the question of fair use was a problem in getting the film shown,” says Andersen. “It hasn’t been shown on television anywhere. I would like to see it have some kind of DVD release. Maybe if it was bigger or more famous it would be a bigger issue.”
Insurance companies have become one of the game-changers for fair-use advocates. The 2005 doctrine helped them become more comfortable with providing those kinds of films with errors and omissions insurance, which protects them from lawsuits. Without that policy in place, no distributor will touch a film.
One of the modern trailblazers is Kirby Dick, who invoked the fair-use doctrine for clips in his documentary about the MPAA ratings system, “This Film Is Not Yet Rated.” He’s since used it in two other films, including his recent Sundance audience-award-winning “The Invisible War,” but he says that claiming fair use is an extremely frustrating process.
“Filmmakers agonize through it,” he says, “but going through this approach can save you a lot of money.”
According to Donaldson, clearing the rights for a mere 30-second clip from a studio film can cost between $6,000 and $8,000, an astronomical figure for an independently produced film. He often gets the studio to lower its fee after sending a package complete with a DVD on fair use and examples of litigation over the years. In one instance with a studio last year, he got the fee dropped from $45,000 to $15,000.
This negotiating of fees has been a contentious subject for copyright holders who feel they are being exploited. “This is where I take [Donaldson] to task,” says Cathy Carapella, who handles rights and clearances for Global ImageWorks and speaks on fair-use issues for the nonprofit Association of Commercial Stock Image Licensors. “If it’s fair use, why offer to pay for anything?”
Donaldson deflects that criticism by claiming that he tells fair-use clients that they can either release the film and fight the cease-and-desist letter later if it comes or preserve a relationship with the copyright holder by agreeing upon a fee. “Those decisions are always up to the filmmaker,” he says.
Dick hasn’t yet seen “Room 237,” but after hearing how the footage is used he’s confident Ascher is in the clear. When asked what advice he’d give Ascher as he navigates the waters of fair use, Dick simply says, “Have him call me.”