September 22, 2015 10:26 pm
A federal judge's verdict today marked a great victory for filmmakers and fair use champions everywhere. The ruling that the lyrics to “Happy Birthday to You” are not protected by copyright has special resonance for Kartemquin, as the injustice of having to pay $5,000 to license the song in our 1994 film Hoop Dreams directly inspired our long and ongoing fight to secure the fair use rights of all filmmakers.
In one of the most infamous cases of the unfair "clearance culture" that existed before filmmakers began reclaiming their fair use rights to use copyrighted material, we were forced to pay to license this scene from Hoop Dreams, in which the Agee family sings to Arthur on the occasion of his 18th birthday.
As he describes in this 2014 interview, this incident - and another in which we had to play for background muzak - helped push Kartemquin Artistic Director Gordon Quinn to find out more about the issue:
"By the time we did Hoop Dreams, which was 20 years ago, we were licensing things that were clearly fair use.
It was quite clear to us that we weren’t going to get the E&O insurance, we weren’t going to be able to get it broadcast, and theatrical distributors wouldn’t deal with it unless we had literally everything cleared.
Two examples in that film that drove me crazy, but where in the end I had to cave in was when the family sings Arthur ‘Happy Birthday.’ We had to license ‘Happy Birthday.’ It was just absurd.
And then there’s another scene where we’re interviewing William’s mother, and she’s waiting in the hospital when he’s having knee surgery. His whole career’s on the line, and there’s Muzak in the background that we couldn’t get turned off, so we had to license that.
We had lost our fair use rights. Well, the whole field had, and from then on, we were licensing things. We were caught up in what Peter Jaszi and Pat Aufderheide call the clearance culture. And I got involved in the beginning. I remember walking in the drizzle in Amsterdam, and Pat Aufderheide lays it out for me: “You guys can win this back. You don’t need to be a victim this way.” What she meant that was that we didn’t have to go to the Congress or the courts. We didn’t have to lobby anyone and try to get the law changed, which is what I’ve done before. We just have to stand up as a community for our rights. I was like “Wow, I’m on board.”
Once they did their research to show what the problem was, they published some documents about that. Pat Aufderheide and Peter Jaszi published some research. Once they did that, they started to have meetings with our field across the country.
We hosted two of them in Chicago at Kartemquin. At each meeting we had 20 to 25 people there. One was for documentary filmmakers and the other was for organizations and people around Chicago for the exhibition of films.
In a sense what’s interesting about it is it’s kind of a model in which academics can play a very positive role in Democratic society, because they identified a problem, they talked to the group of people who were suffering under the problem, and they said: “Here’s something you can do to address this problem.”"
The creation of the “Documentary Filmmakers’ Statement of Best Practices in Fair Use” then dramatically changed the documentary industry, greatly reducing the cost of making films that draw on copyrighted material, and opening up the current "golden age" of the form.
Since the "Best Practices" document was created, Gordon Quinn and Kartemquin Technical Director Jim Morrissette have continued the fight by regularly submitting their comments on the importance of fair use to the U.S. Copyright Office, requesting an exemption to the DMCA and then several renewals of that exemption. So far, these have all been successful (the 2015 ruling is currently pending).
We'll continue to fight for the fair use rights of filmmakers as long as is needed. Today's verdict around "Happy Birthday" is another reason to raise awareness of these issues, and to ensure we never return to an era like the one that exists back when Hoop Dreams was made.
Patricia Aufderheide, University Professor and Senior Research Fellow at the Center for Media & Social Impact, and a former Kartemquin board member, comments on the news:
"It's exciting to see a legendary example of overreach pulled back, and public domain recognized. It's only sad that so many filmmakers will never get their money back. Many of them could have avoided unnecessary payments, of course, by employing fair use, even believing the song was copyrighted, if only they had known their rights. Their outrage over payments like these inspired filmmakers in 2005 to create the Documentary Filmmakers' Statement of Best Practices in Fair Use."
Said Hoop Dreams director Steve James:
"Great news. If only we'd known what we know now. I've used far more expensive songs since then because of the efforts of Gordon, Pat, and others. Latest example: Steely Dan's Reeling in the Years in Life Itself. I don't even want to know what that would have cost us if it wasn't fair use!"