Adrian Salas

IS 289-2, Copyright
Fall 2014

Films from Films

Intellectual property concerns in relation to films is a complicated field of study.
Much like any area that deals with creative works and all the attendant rights, moving
images present their own specialized problems that can be quite opaque legally. This is
compounded with films due to all the players involved in the creation, financing and
distribution of moving image works. A specialized area that has arisen in recent years is
that of the clip film which is focused on other films. These films are collage like works
that can have aspects of both documentary and appropriation art depending on the
creators aims. The motion pictures in question can often be composed mostly, if not
entirely, of previously created works under copyright. How then are these films able to be
made and released to the public? The answer in many cases is through application of Fair
Use practices in securing intellectual property exemptions where normal clearance of preexisting materials through licensing cannot meet the needs of filmmakers for various
reasons. In particular, three films will be looked at as case studies of Fair Use by
filmmakers. These movies are Los Angeles Plays Itself (Thom Andersen, 2003), The
Clock (Christian Marclay, 2010), and Room 237 (Rodney Ascher, 2012).
The idea of assembling films previously established works has been around for a
long time, at least in relation to the time span of moving images as a medium.1 In the
book Films Beget Films, the author Jay Leyda explores the idea of the compilation film
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1 The definition of Motion pictures according to 17 US Code Section 101 is audiovisual works consisting of a series
of related images which, when shown in succession, impart an impression of motion, together with accompanying
sounds, if any.

which they foreground as work that begins on the cutting room table, with already
exiting film shots.2 The author goes on to expand his definition and focuses heavily on
footage birthed from newsreels. In an appendix to the work, the author traces examples of
compilation films all the way back to 1914. Although the form has perhaps existed a long
while, the production technologies and legal processes have not, so films of more recent
vintage have been created in ways that are particular to their more modern context.

The Problem
The films in question all are assembled and purposed slightly differently, but at their
heart they exist as creative works composed primarily of pre-existing copyrighted works.
To go through normal channels to get clearance on all the footage used for the films from
pre-existing properties would likely be a more Herculean task than the actual production
of these works, due to tracking down and negotiating with rights holders. Even were all
the rights holders tracked down and permission given, the cost of licensing all the footage
could well surpass any production budgets these films are operating on.

The Solution: 17 U.S.C. 107, Fair Use Exceptions

The United States Code grants that the fair use of a copyrighted work, including
such use by reproduction in copies or phonorecords or by any other means specified by
that section, for purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringement of
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copyright. To determine if a work falls within these parameters, 4 factors are weighed to
2 Leyda, Jay. Films Beget Films. George Allen & Unwin LTD. London, 1964.

make a judgment: purpose and character of work, nature, amount of original work used,
and effect on the market. These aforementioned factors had been established in 1841 with
the Folsom v. Marsh case, but only formally enshrined in the copyright code with the
Copyright Act of 1976. These factors are only guidelines for the courts and there is no
golden sets of numbers or bright line tests for determining Fair Use. As such Fair Use is
largely up to the discretion of the court and presiding judge so determining the validity of
a fair use claim happens on a case by case basis. This means that while it is a valid
statutory exemption, it will require film makers to run a risk analysis for themselves
before they attempt to invoke Fair Use, to be sure they can reasonably defend their
decision to operate under its aegis rather than seeking permissions from rights holders.
That is not to say that filmmakers shouldnt attempt to contact rights holders for their
blessing, or to inquire about terms for licensing footage if it seems like something
reasonable can be arranged. But even if rights holders object to use of their properties,
properly applied Fair Use is still a valid legal strategy, as it is intended as a legal remedy
to onerous restrictions that could potentially lock away works that can be repurposed for
societal benefit or enrichment. Copyright is intended to encourage the creation of new
works by encouraging creators with protection and mechanisms to exploit their creations.
The problem that arises though is that sometimes copyright gets too draconian in the way
they can cause works to be locked away and punish individuals who have made distinct
new creations that incorporate reasonable amounts of a pre-existing creation and are done
in good faith.
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Clearances

There are several varieties of clearances that filmmakers need to acquire for
production of most motion pictures. In the case of clip films, licensing footage and
images is one of the most obvious should one not settle on exclusively going with Fair
Use to clear everything.
Music clearance is another matter. The rights to music are very complicatedly
structured, and consist of several layers. Fair Use is possible with music but it is much
harder to ascertain what is likely defensible as there is less settled case law in this area to
refer to in making a risk analysis decision.3 Solving music issues on ones own is
certainly not advisable, and should bring in the advice of an experienced music lawyer or
music supervisor, as the many different interested parties and licenses involved make for
quite a mire of confusion.
Should one be constructing script from true events, life story rights from one or more of
the active participants could be very useful to have. They are not strictly required, as one
can legally use any true facts that are out in the public to assemble a story, but they can be
useful to have as they can indemnify your production from actions by persons in question
should they take issue with the film. The life story right can also be helpful in securing
one co-operation by an interested party that can help in obtaining information not in the
public record.
Title clearances are something that fall under a bit of an odd area as far as the law in
concerned. Titles of films cannot actually be copyrighted as they are too short, and seen
as not meriting legal consideration under the de minimis standard. Title clearances are
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still desirable though as they can guard against confusion in the market place. One can
3 Jolliffe, Genevieve, and Andrew Zinnes. The Documentary Filmmakers Handbook. 1st ed. New York, NY:
Continuum, 2006. 44-48.

hire an agency and obtain a report that will outline any potential conflicts.
As for items that can appear on camera in productions, that can be a lengthy list.
Included are visual works, buildings and locations, telephone numbers, actual names, and
street addresses.4 Also one should get releases from people appearing in scenes, and of
crowds. Actual products can be shown, assuming they are not shown in a bad light, which
can then bring a charge of trade libel. Also, extra care should be shown if trademarks or
logos are depicted as this could cause potential conflicts and require clearance. Many of
the potential conflicts outlined here can be headed off during pre-production by getting a
script clearance report. This report is done by specialists who will review a script for
potential conflicts and infringements that show up and flag them so that they can be
examined by the film-makers, and also their legal counsel should they have it, to then
make decisions on what to change, obtain clearance on, or proceed with using as-is after
conducting a risk analysis. Ideally a script clearance report should cover ALL potential
conflicts, even very minor sounding ones, so as to make film-makers aware of any
potential liabilities they are exposed to so that they take pro-active measures to ensure
they are not suddenly the subject of a lawsuit or infringement claim from any one of a
range of potential claimants.

E&O Insurance
Errors and omissions (E&O) insurance is in a way the culmination of all the
clearance work that goes into a film.5 This is the policy that a film maker can buy to cover
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4 Honthaner, Eve Light. The Complete Film Production Handbook. 4th ed. Boston, MA: Focal Press, 2010. 274-276

5 Donaldson, Michael C., and Lisa A. Callif. The American Bar Association's Legal Guide to Independent Filmmaking.
Chicago: American Bar Association, Forum on the Entertainment & Sports Industries, 2010. 182-186.

themselves against claims and suits once their film goes to market. Filmmakers must let
insurers know that all efforts were made to obtain clearances and ameliorate conflicts that
arose during production of the film, so that they can be issued a policy from an insurer
that will indemnify them should claims be brought forward. Insurers now recognize as a
legitimate defense for their uses of copyrighted materials, and will offer up policies to
filmmakers who have used the fair use provisions in good faith in their productions. Once
E&O insurance is secured, a filmmaker can then deliver a clear chain of title to the
studios that will distribute their films. The chain of title is the collection of documents
which demonstrate that a film and all the ancillary parts of it are owned or at least clear to
be put in the market place.6
Los Angeles Plays Itself (2003)
Thom Andersens film is a nearly three hour examination and critique of the
relationship between Los Angeles and its portrayal in motion pictures across genre and
time. The film is a pastiche of multiple clips of films from throughout film history that
feature Los Angeles in some significant way. The film plays like a visual essay as it is
accompanied by narration scripted by Andersen, which expounds on his thoughts and
(usually grouchy) critiques of the depictions that Los Angeles has been subject to through
the ages. The film is an interesting case because it was only shown in theaters, usually
with the director in attendance, from its premier up until late in 2014 when it was finally
released on home video. The common story was that the film could never be cleared for
distribution, so it would never see the light of day as a saleable commodity.
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6 Donaldson, Michael C. Clearance and Copyright: Everything You Need to Know for Film and Television. 3rd ed. Los
Angeles: Silman-James Press, 2008. 386-398.

According to the Los Angeles Times article written about its home release, it turns
out that prominent fair use entertainment lawyer Michael Donaldson had examined the
film as far back as its premier and judged that its commentary and critical method of
showing clips as central to the thesis Andersen had constructed, most likely put the film
well on the side of Fair Use. It seems the main surmise to be drawn about the delay of the
film is probably more owing to Andersens somewhat irascible nature and how
Andersen balked at paying the [E&O] insurance premium that would have (or, at
least, could have) given him the assurance that copyright holders wouldnt come after
him.7
The Clock (2010)
This piece by Christian Marclay uses depictions of time pieces across films to edit
together a giant 24 hour patchwork motion picture.8 The twenty-four hour film is meant
to be ran so that audiences experience the film in synch with real time. Shown primarily
in museums and art spaces, and technically relatively hard to exhibit in its intended way,
this piece has a lot in common with appropriation art. In the end the film edits together
more than 10,000 films clips to produce the finished work.
In Marclays New Yorker profile, there is one quick glossing over of the rights issues
in the piece: One issue that didnt give Marclay pause was copyright, because nobody
7 Whipp, Glenn. "'L.A. Plays Itself' Is Finally Coming to Home Video. Here's How." Los Angeles Times, July 16, 2014.
Accessed December 6, 2014. http://www.latimes.com/entertainment/movies/la-et-mn-on-film-copyright-protectionmovies-20140727-story.html.

8Salas
A profile
on Christian Marclay in the New Yorker gives a very good explanation of how he came to assemble the
7
work:
Zalewski, Daniel. "The Hours: How Christian Marclay Created the Ultimate Digital Mosaic." The New Yorker, March
12, 2012

had objected before to his appropriation art. He had a theory: If you make something
good and interesting and not ridiculing someone or being offensive, the creators of the
original material will like it.9 This would seem to indicate either a very cavalier attitude
from Marclay, or very nave. This attitude could also be attributed to Marclays
background working in the world of high art, where a well-represented artist with
financial backing may be more likely to take a risk with releasing their work out into the
world and challenging any claims against them as the need arises. For instance, artist
Richard Prince has several times made art works where there is very little apparent
transformative use of the underlying work he appropriates, but courts have still found for
his claims of Fair Use, such as in Cariou v. Prince which recently went before the US
Court of Appeals in the 2nd Circuit in 2013. Similar rulings have helped out other
appropriation artists too, such as in Blanch v. Koons in 2006 which also had went before
the US Court of Appeals in the 2nd Circuit, and found that Koons use of part of a
previously published photo in a collage was appropriately transformative to merit Fair
Use considerations. An artist, including a video artist such as Marclay, is not necessarily
tied into the same studio distribution systems as other filmmakers. Instead their
representation by a gallery may allow for more lee-way in releasing a product into the
world and then taking on any challenges, especially as the liability on their end may be
less burdensome should infringement be found, as most of their works are purposely
more limited in distribution.
In the case of Marclay though, his work on The Clock is much more clearly
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defensible as a fair use do to the substantial transformation of the completed work, and
9 Zalewski.

especially the amounts used by him to construct a defined commentary and critique about
the perception of time. Clearing ten thousand clips individually would be a fools errand
due to the time, expense, and logistics involved, so Fair Use is really the only viable
solution for how Marclay could proceed with producing and clearing the work. Although,
the amount of clips involved is very substantial, another factor in Marclays favor, is that
in constructing his loose structural drive for the piece, he is focused on depictions of time
in the cinema. Therefore many of his clips are relatively short sections of a film that are
often only a few seconds in duration, and in which a clock or watch appear, or perhaps
time is mentioned briefly. It would be hard to argue that Marclay is preparing a derivative
work that would harm the market for the original films, as he is reconfiguring them so
heavily and with such little interest as to exploiting the heart of the work to his own
ends.
Room 237 (2012)
Room 237 differs from the other films mentioned in that it is not a compilation of footage
from multiple other sources, but instead is prepared primarily with footage from Stanley
Kubricks version of The Shining (1980). Made to function as an examination of (often
far-fetched) theories that fans have developed about Stanley Kubricks original film,
Room 237 may take a substantial amount from a single work, but through commentary
and repeated analysis of minutiae that is present in scenes, it creates a work whose
markedly different from the horror film crafted by Kubrick. The chance for confusion in
the marketplace for the two films is remote enough that the two can both exist without
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danger of Room 237 damaging the exploitation potential of The Shining.

An interesting aside is that the Kubrick estate was initially not going to allow the

film proceed to distribution. Although not actually needed for a case of provable Fair
Use, it eventually came about that Kubricks estate was eventually placated with a
lengthy disclaimer that, on screen, usually results in one of the movies biggest laughs
because it just keeps going.10 While a disclaimer is not strictly a requirement to apply
fair use, it can be helpful if it can appease the rights holder of a property form taking
further action against your product and save on potential legal hold ups and fees down the
road. A disclaimer can be a liability though, if one is included without any sort of
prodding from sources. Rather what one should do most times is credit the source
material but be sure to not include extraneous wording that could misleadingly imply that
license or permission was granted to the material that is being made utilized through fair
use.11
Key Cases and Works
In 2005, the Documentary Filmmakers' Statement of Best Practices in Fair Use
was released and provided a touchstone for people to refer to in determining if a film can
use Fair Use to its advantage and what the filmmakers must do to ensure that their
application of Fair Use passes muster. With documentation in place, it helped codify a
turn in attitudes towards acceptance of the practice of Fair Use as a legitimate strategy. It
illustrates that Fair Use is a good faith action taken by filmmakers create legitimate new
works, and not just a way for them to circumvent whatever systems that were in place to
monetize or restrict access to copyrighted assets.

10
Whipp,
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10 Glenn. "'L.A. Plays Itself' Is Finally Coming to Home Video. Here's How."

11 Donaldson, 45.

While there are a myriad of cases related to Fair Use as applied across the spectrum
of creative works, starting with the already mentioned Folsom v. Marsh decision, there
are also a set of case decisions that relate very directly to the application of Fair Use to
Audio visual works. Bill Graham Archives v. Dorling Kindersley, Ltd. Is a case that deals
with a book published by the defendant in which concert posters from the Grateful Dead
were reproduced in thumbnail size reproductions for a coffee book about the band. The
defendant approached the Archives for permission, but when they were unable to reach
an agreement they went ahead with using the thumbnail size reproductions in the book.
When the Bill Graham archive sued the publisher claiming infringement the US Court of
Appeals for the Second Circuit found the recontextualiztion of the images as small
thumbnails on a timeline with commentary to be Fair Use. The case established that size
could be a deciding matter in determining transformative use of copyrighted material.
Lenz v. Universal is a 2008 case brought in the Northern California District Court, in
which Universal Music Group issued a takedown notice to a video posted to YouTube in
which music by Prince could be heard playing. The importance of this case is that the
court denied Universals infringement claim, because it did not consider Fair Use before
issuing a Digital Millennium Copyright Act takedown notice. A consideration of Fair Use
is now required before a takedown notice can be sent. Finally, Sofa Entertainment V.
Dodger Entertainment was decided in 2013 in the 9th Circuit Court of Appeals. This case
concerns a short clip of The Ed Sullivan Show being used in the production of the play
Jersey Boys without acquiring license or a clearance. A court found that even though the
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play was a commercial endeavor, the clip was still fair use it provided historical context
to the events being portrayed on the stage. All the cases mentioned show that Fair Use is

a viable defense, and there are even more that function as foundational support to various
other facets of this assertion.

Conclusion
The world of film production is filled with many ins and outs as far as all the factors that
must be approved to produce and then distribute a motion picture. Particularly
challenging is sorting out the intellectual property rights that are tied up with using preexisting materials. These challenges though should not preclude filmmakers working in
good faith and undertaking due diligence from using properties to make new creative
works. If properly applied, Fair Use can be a very powerful tool for opening up avenues
of expression, while still respecting the letter of the law.

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Works Referenced
Documentary Filmmakers Statement of Best Practices In Fair Use, 2005. Accessed
December 7, 2014.
Donaldson, Michael C. Clearance and Copyright: Everything You Need to Know for Film
and Television. 3rd ed. Los Angeles: Silman-James Press, 2008.
Donaldson, Michael C., and Lisa A. Callif. The American Bar Association's Legal Guide
to Independent Filmmaking. Chicago: American Bar Association, Forum on the
Entertainment & Sports Industries, 2010.
Honthaner, Eve Light. The Complete Film Production Handbook. 4th ed. Boston, MA:
Focal Press, 2010.
Jolliffe, Genevieve, and Andrew Zinnes. The Documentary Filmmakers Handbook. 1st
ed. New York, NY: Continuum, 2006.
Levison, Louise. Filmmakers and Financing Business Plans for Independents. 6th ed.
Burlington, MA: Focal Press, 2010.
Leyda, Jay. Films Beget Films. London: George Allen & Unwin, 1964.
Wales, Lorene M. The Complete Guide to Film and Digital Production: The People and
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the Process. Boston: Pearson, 2012.

Whipp, Glenn. "'L.A. Plays Itself' Is Finally Coming to Home Video. Here's How." Los

Angeles Times, July 16, 2014. Accessed December 6, 2014.

http://www.latimes.com/entertainment/movies/la-et-mn-on-film-copyrightprotection-movies-20140727-story.html.
Zalewski, Daniel. "The Hours: How Christian Marclay Created the Ultimate Digital
Mosaic." The New Yorker, March 12, 2012.

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