For documentary filmmakers the ‘fair use’ of copyrighted material is a protection that allows them to create much of their work. But in recent years the terms of ‘fair use’ have been hotly contested. Gordon Quinn, producer of "Hoop Dreams," explains why he and a group of award winning documentarians are headed to D.C. this week for the next round in the fight.
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BOB GARFIELD: Consumers have been willing to agree to certain locks on the books they buy for the Kindle. At this point, most folks seem to be willing to put up with locks on all kind of content. But locks on DVDs are causing a special problem for documentary filmmakers. They have a legal right to use the material on those DVDs, under fair use laws, but the Digital Millennium Copyright Act makes it illegal to break the DVD locks. So this week, a group of documentary makers you might know from such films as Super Size Me and Hoop Dreams took their case to the U.S. Copyright Office to ask for an exemption. Gordon Quinn is the artistic director and co-founder of Kartemquin Films, the producer of Hoop Dreams. He says that this fight comes after years of needlessly backing down every time copyright holders threatened lawsuits.
GORDON QUINN: Everybody just got scared and caved in and so, you know, you couldn't get your work on PBS or on other broadcasters, and you couldn't get insurance for it to cover these kinds of things, if something came up. And so, the landscape changed from one in which fair use was used a lot to one in which you just pretty much couldn't use it.
BOB GARFIELD: But haven't documentarians recovered much of the leeway that they had surrendered over the decades since, let's say, the 1960s?
GORDON QUINN: Yes, that’s really important to us. I mean, five years ago, Pat Aufderheide at the Center for Social Media and Peter Jaszi at the Washington College of Law came really to our field and said, you guys have got a terrible problem. There’s nothing wrong with the law. You don't have to go to Congress. You don't have to go to the court. It’s in the law. All you have to do is use it. And we've been pushing back ever since, over the last four or five years.
BOB GARFIELD: In essence, you've emboldened other documentarians.
GORDON QUINN: Exactly. And, I mean, you know, I was a victim of it too. I mean, in Hoop Dreams the family sings the boy Happy Birthday and we had to license that for 5,000 dollars. Today I would just claim fair use. We didn't ask them to sing it. It’s a snippet in our movie. Our movie’s not about Happy Birthday. It’s about the relationship between these family members. And it has been amazing because we have really won our rights back. The broadcasters have come on board. Our last three or four films were broadcast with the fair use claims in them. And, in the last couple of years, the insurance companies have gotten on board.
BOB GARFIELD: Having asserted those rights, you’re stuck with another problem and one that by the time this airs you will have testified about in Washington, and that concerns this weird situation where you’re allowed in the house but risk arrest unlocking the door. Tell me [LAUGHS] about encryption and DVDs.
GORDON QUINN: The problem that we have now is that the Digital Millennium Copyright Act has this very weird piece of it, which essentially your analogy is exactly right. It says the mere act of breaking the encryption on a DVD is what’s illegal, even if the use to which you’re going to put the material is legal. Of course, everyone knows how to break this encryption. You know, you could find an 18-year-old who can break it for you in a minute. But that’s not the point. We don't want to have this vulnerability of having broken this strange piece of the law. The Copyright Office has let some exemptions be created, and we are going as documentary filmmakers and saying, look, we would like an exemption, just in this narrow circumstance, only in terms of our fair use.
BOB GARFIELD: Okay, so maybe I'm listening to this and I go, yeah okay, so a bunch of documentarians are running around in their turtlenecks and Birkenstocks, what’s it to me whether they have access to encrypted DVDs? Why do I care?
GORDON QUINN: Why you care about it as a citizen is in a democracy you need to be able to talk about things. You need to be able to discuss things. You need to be able to criticize things. And you can't have ownership issues preventing you from having this dialogue. That’s why fair use is in the copyright law. It’s Article 27 in the Universal Declaration of Human Rights. You know, everyone has the right to participate in the culture of their community. I have to be able to say in our film, Refrigerator Mothers, when I'm showing women who were blamed for causing their own child’s autism – they were told they didn't love their child – you know, it was a completely discredited theory, well, I have to show that culture and how women were being portrayed and how they were being treated in the 1950s. And as citizens, people have to care that these films are being made and that people, journalists and other people who tell stories, are not being burdened by all of these unnecessary hurdles.
BOB GARFIELD: Gordon, thank you very much.
GORDON QUINN: Thank you.
BOB GARFIELD: Gordon Quinn is the artistic director and co-founder of Kartemquin Films.