As Wikipedia puts it, “Fair use is a legal doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders. It is one type of legal defense, called an affirmative defense, to the exclusive rights granted to the author of a creative work by copyright law.” This makes it seem as if fair use is an small exception to copyright law, when really it is the other way around. Copyright law is an exception to fair use, but that’s a discussion for another time. Either way, fair use is a vital part of many people’s work, myself included. Documentarians, journalists, and educators (I am arguably all three) could not inform the public or offer thoughtful analyze of ideas and events throughout our history if they were forced to seek permission and/or pay royalties every time they played a piece of media that they wished to discuss.
My film, Conspiracy Theorists Lie (2015) relies heavily on fair use, because I had to show the audience what conspiracy theorists have said in order to explain how it is wrong, and, in many cases, false. Here is how I put it in the closing credits:
“No one owns history and the public interest demands that intellectual freedom prevail over the narrow concerns of copyright holders when assessing the meaning of our shared past or making a political argument. All material in this film was recorded by James K. Lambert, or his representatives, clearly in the public domain, or utilized under the principle of fair use to promote a better understanding of the distorted historical record surrounding the Assassination of President Kennedy and the harmful mindset that all conspiracy theorists promote.”
Yes, I know, “assassination” really shouldn’t be capitalized, but the point here is clear and I am confident that I have the moral and legal right to sample everything I sampled in the film. Before I released Conspiracy Theorists Lie, last August, I put a test copy privately on YouTube, which means only I can watch it or share it with other individuals. I was surprised to find that large corporations have been granted the right, by YouTube, to have their robotic programs scan every upload, including “private” ones, in search of copyrighted content. This has lead to a number of false claims of copyright infringement being filed against me on YouTube, for this film and other videos. Sometimes the footage that has been flagged is actually “public domain” footage (i.e. no one owns it and everyone can use it as they see fit) but I’ll save that story too for another day. When legitimately copyrighted footage has been found by these robots, in my documentary, I have had to explain why and how my work meets the requirements of fair use. In my experience, however, actual human beings rarely seem to look at my first rebuttal, and I inevitably receive another notice denying my counter claim. This forces me to submit a second rebuttal (or “appeal”), explaining how my work has met each of the four points that are commonly used to determine fair use (technically you do not need all four points to have a court rule in your favor but the more you have the better). This second rebuttal, from what I have been able to learn about YouTube’s practices, must be looked at by an actual human being, and when that happens the other party typically backs down.
I have previously received notices from Warner Bros. for the JFK (1991) footage I use in my film and The Carson Entertainment Group for Tonight Show (1962-1992) footage I use in my film. Both of whom released their claims without comment, once I laid out my case. Most recently, I received a claim from Showtime over the Penn & Teller: Bullshit! (2003-) footage I used in my film. As usual, my first rebuttal was denied, after they waited nearly the entire 30 days they had to respond, and then, just before the second 30 day period was up, I received an email from CBS’s Legal Department (because CBS owns Showtime).
You notice how they failed to even acknowledge the concept of fair use, let alone the arguments I had made as to why/how my work meets the requirements in multiple ways? They pretend that I have no options, “Due to legal and contractual limitations…” which they cannot control. Their proposed solution was to get me to give up my rights, “in writing,” and receive nothing in return. Well, I wasn’t about to do that.
I wrote to CBS and made it clear that they were not dealing with some random kid who happened to post something online because I thought it was funny. I am a serious documentarian, with an MFA in my field, and my work meets all four of the points by which the courts commonly judge fair use, in my expert opinion. I also made it clear that if they took this to court I would be able to draw upon many friends, and friends of friends, in the film industry, who would be happy to come testify about the importance of fair use and why my work clearly falls into that category. Lastly, I told them that I would call Penn and Teller to that stand and ask them if they supported my right to freely use this material in making my arguments, or if they wanted to stand with the narrow interests of a big corporation trying to abuse the copyright laws? I purposed that they stop harassing me and not make the foolish effort of bringing me to court, which would only give free publicity to my film. CBS Legal did not reply to me, nor did they reply to my appeal on YouTube; allowing the mandatory 30 day window to close and their original claim against me to be dropped.
After these victories for fair use, free speech, and the public’s right to be informed, I was feeling pretty good. Then, last night, I had the following exchange on Facebook with Brent Holland, the conspiracy theorists Internet caster of Night Fright:
I used footage of Holland interviewing conspiracy theorists guru, Mark Lane, to make several important points in my film. I have made no secret of this – Holland and Lane are listed as being in the film on IMDb and I know I have talked about them being in the film on Facebook before – but, for some reason Holland is just now getting around to noticing this, or he is being egged on to go after me. Regardless, I am confident that, once again, I am in the right. Yes, the UK concept of, “fair dealing,” which Canada and other UK colonial outshouts have adapted into their legal system, is slightly more narrow than the US concept of, “fair use,” but the principle and purpose is the same. The public has a right to freely hear information and people like myself, who make serious productions, have the right to inform the general public. It also should be noted that the Canadian courts have been moving in a more expansive, “fair use,” direction. When the Supreme Court of Canada upheld an appeals’ court decision in 2004, regarding, “fair dealing,” they said each case must be seen through a framework of questions:
“(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases.”
This sounds very similar to the four factors that US courts look for:
“The purpose and character of your use.
“The nature of the copyrighted work.
“The amount and substantiality of the portion taken
“The effect of the use upon the potential market.”
The only question is: How far will Brent Holland take this before he realizes he is wrong? I’ll keep you updated if there are any developments but let’s hope he comes to his senses and drops the matter all together. It would be nothing but a waste of time for everyone involved and an abuse of the public’s right to be informed!
P.S. I’d still be happy to appear on Holland’s show and explain this all to him in (virtual) person.
After many months, Brent Holland randomly decided to post a comment on the “about” page of this blog, failing again to acknowledge any of the facts in this matter and threatening me with immanent “justice.” I tried my best to set him straight.
After writing back to Mr. Holland here I posted about this latest development in the Facebook “JFK – The Truth” page and he replied:
So I tried, once again, to speak reason to him:
He has said nothing in return.