Sunday, April 11, 2010

The Sixty Million Dollar Man

Virtualpolitik friend Kembrew McLeod recently wrote in the Atlantic about "How to Make a Documentary About Sampling--Legally."

While we raised the money to license about two-dozen songs and some footage, our film nevertheless contains over 400 brief-but-unlicensed uses of copyrighted material. When I can't sleep at night, I sometimes count how much we'd be liable for: up to $150,000 in statutory damages, per infringement. 400 x $150,000 = $60,000,000. Sixty. Million. Dollars.

Why did we use so many clips? Ben and I wanted the film's aesthetic to reflect its subject matter: collage, hip-hop sampling, and the rise of remix culture. Copyright Criminals documents how hip-hop producers have, since the genre's origins, cut and pasted portions of old records into their own music. For years, hip-hop stayed beneath the commercial radar, which gave producers a lot of creative freedom to make their art however they wished. The music that emerged in the late 1980s and early 1990s often featured densely layered musical collages that were groundbreaking.
. . .

Fun fact: If they sue us, the case would be called Bridgeport v. Copyright Criminals. Something is fundamentally wrong when a professor who studies copyright has problems making and distributing a documentary because the film's subject matter stands in the way. But after a lot of hard work, our film made it into the world.

So, how did we pull it off? Two words: fair use. This U.S. statute allows you to quote from copyrighted works without permission for the purposes of education, commentary, criticism, and other transformative uses. In 2005, the Washington, D.C.-based Center for Social Media worked with documentarians to develop and publish an influential document that helped strengthen fair use. The Documentary Filmmakers Statement of Best Practices in Fair Use provides clear guidelines for quoting copyrighted content in ways that documentarians considered fair.

Given that courts pay attention to a particular community's standards when deciding copyright infringement cases, this was a key factor in successfully persuading broadcasters, DVD distribution companies, and insurers to relax their stringent rights clearance policies. This made it possible for Copyright Criminals to air on television. In fact, fair use might very well apply to the many examples of transformative sampling documented in Copyright Criminals; even music industry attorneys have privately admitted this to me. One major irony of our film is that if fair use had been more firmly established for sampling twenty years ago, things might have turned out very differently for Public Enemy and others.

It's a rhetorically interesting piece in which McLeod wants to distance himself from "the rant of a spoiled child" and uses the language of civics to make his point, as when he says that the public needs a "democratic system of checks and balances developed by real people."

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