Simply put, “fair use” is a legal principle that allows copyrighted material to be used without permission from or payment to the owner. But a recent symposium on the subject at New York University demonstrated just how difficult it is to know what constitutes fair. And in the meantime, many creative types are left in the lurch. Amy Sewell, producer of the documentary "Mad Hot Ballroom", shares some war stories with Brooke.
MIKE PESCA: This is On The Media. I'm Mike Pesca.
BROOKE GLADSTONE: And I'm Brooke Gladstone. Late last month, New York University's Institute for the Humanities hosted a symposium titled "The Comedies of Fair Use". Simply put, fair use is a legal principle that allows copyrighted material "to be used within reason, without permission from or payment to the owner". But the symposium, with its guest artists, authors, musicians, filmmakers and academics, demonstrated just how difficult it is to know what constitutes fair use. In a moment, we'll hear from law professors who study copyright, but first, a few war stories from the trenches. Amy Sewell is the producer and writer of the documentary "Mad Hot Ballroom", which follows neighborhood kids from New York City through intensive dance lessons. Her movie was released last year and she joins me now. Amy, welcome to On the Media.
AMY SEWELL: Thank you for having me, Brooke.
BROOKE GLADSTONE: So, it's nearly impossible to walk down the street in New York City without encountering a logo or a photo or a song that isn't copyrighted, but you never imagined that you'd wind up in a legal negotiation with the label EMI. Start from the beginning and tell us what happened.
AMY SEWELL: Within the movie "Mad Hot Ballroom," which is about 11-year-olds' journey into the world of dancing in New York City public schools, we had to clear over 20 songs for the movie. One of them was in a scene where a little boy from Bensonhurst, Michael, and his mother are walking down the street. And during this scene, which is just being shot as is, normal daily life, his mother's cell phone rings, and the tune is "Gonna Make You Fly" from the hit movie, "Rocky", and she answers her phone. It was six seconds. With every song you have to clear two sides to the music. One is the master, which Sprint owned, and they gave us permission to use it for free. But then you also have to clear the publishing rights, and that side was owned by EMI. And I think they start at around 10,000 dollars for those six seconds. [BROOKE LAUGHS] And we kept negotiating them down, and eventually we ended up getting it for 2500. I call it my 2500-dollar laugh in the movie, and I laugh very, very hard every time I see it.
BROOKE GLADSTONE: [LAUGHS] Trying to amortize the cost of each 2500-dollar use. Now, we should stipulate that "Mad Hot Ballroom" is a documentary. It isn't a fictional film. It wasn't your choice to put "Rocky" in there, but once that cell phone rang, you felt you had to use it--why?
AMY SEWELL: That was a part in the movie that I just thought really showed a relationship between a son and a mother, what's happening in today's society with mothers and their cell phones, and also the humor behind it, that they are Italian from an Italian neighborhood, and it was the theme song from "Rocky".
BROOKE GLADSTONE: So "Rocky" stayed in, but another reference to a pop song went out. You decided not to pay for that one.
AMY SEWELL: Yes. That was a scene where the three boys from Bensonhurst were in the basement playing Foozball, and young Ronnie belts out "Everybody Dance Now," without any tune or musical chords behind him or in his voice.
BROOKE GLADSTONE: "Everybody Dance Now". You mean, like [SINGS] Everybody Dance Now--from the C&C Music Factory?
AMY SEWELL: Exactly, and I'm glad you're singing it, and not me. [LAUGHTER] So it's from C&C Music Factory, and that's actually called a visual vocal cue. And Warner Chappell wanted 10,000 dollars for that.
BROOKE GLADSTONE: Ten thousand dollars for a kid saying, not even singing, "Everybody Dance Now"?
AMY SEWELL: For three words. And we got them down to 5,000. But they had reminded me that they'd been very good to us with a couple of other songs, so we let it go. But I think what's really kind of frightening is that, as a documentarian, and again, I think of documentarians as journalists, you can't control what people say, and you shouldn't have to; it ceases to be a documentary. I'll give you one more example that falls into this strange kind of category. In our film, the little team from Bensonhurst, P.S. 112 -- we show them playing in a band. And it's funny, because they really can't play that well. And you can't really recognize that song. It's indefinable. Somebody out there is saying that that's their song, and we're saying, well what song is it? [LAUGHTER] Have we copyrighted every single sound that we'll be headed back to silent movies, so we won't have to worry about any of this?
BROOKE GLADSTONE: So let's say that you poured your heart and soul into a documentary and somebody else took it, reassembled it in a way that completely betrayed the principles that you felt the film had, and they say, "Well hey, it's fair use," do you just grin and bear it? Do you see the other side at all
AMY SEWELL: I do see the other side. At this conference at NYU I was asked if somebody had taken "Mad Hot Ballroom" and put it out there in a way that was not flattering to some of the children, how would I feel about that? And, of course, it would kill me, and I don't think I would sit back and not say anything. I would probably reach inside and find out how I feel, and then speak out. But, you know, fair use is fair speech, and any form of censorship, I think, is not a good thing.