RE: [Videolib] Due diligence

Brewer, Michael (brewerm@u.library.arizona.edu)
Thu, 1 Jun 2006 10:54:56 -0700

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Yes! Couldn't have said it better myself, Gary (though Lord knows I've
tried).=20

=20

On another note, as a Section 108 nerd, I'll point out that actually 108
DOES have something to do with performance (though in a very narrow
sense, and not having anything to do with film, except news) in the
section on works in their last 20 years:

=20

(h)(1) For purposes of this section, during the last 20 years of any
term of copyright of a published work, a library or archives, including
a nonprofit educational institution that functions as such, may
reproduce, distribute, display, or PERFORM in facsimile or digital form
a copy or phonorecord of such work, or portions thereof, for purposes of
preservation, scholarship, or research, if such library or archives has
first determined, on the basis of a reasonable investigation, that none
of the conditions set forth in subparagraphs (A), (B), and (C) of
paragraph (2) apply.

(2) No reproduction, distribution, display, or performance is authorized
under this subsection if -=20

(A) the work is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a reasonable
price; or

(C) the copyright owner or its agent provides notice pursuant to
regulations promulgated by the Register of Copyrights that either of the
conditions set forth in subparagraphs (A) and (B) applies.

(3) The exemption provided in this subsection does not apply to any
subsequent uses by users other than such library or archives.

(i) The rights of reproduction and distribution under this section do
not apply to a musical work, a pictorial, graphic or sculptural work, or
a motion picture or other audiovisual work other than an audiovisual
work dealing with news, except that no such limitation shall apply with
respect to rights granted by subsections (b) and (c), or with respect to
pictorial or graphic works published as illustrations, diagrams, or
similar adjuncts to works of which copies are reproduced or distributed
in accordance with subsections (d) and (e).

mb

=20

Michael Brewer

Slavic Studies, German Studies & Media Arts Librarian

University of Arizona Library A210

1510 E. University

P.O. Box 210055

Tucson, AZ 85721

Voice: 520.307.2771

Fax: 520.621.9733

brewerm@u.library.arizona.edu

-----Original Message-----
From: owner-videolib@lists.berkeley.edu
[mailto:owner-videolib@lists.berkeley.edu] On Behalf Of Gary Handman
Sent: Thursday, June 01, 2006 9:18 AM
To: videolib@lists.berkeley.edu
Subject: Re: [Videolib] Due diligence

=20

108 has nothing to do with performance (never said it did)

It occurs to me that it's increasingly easy for librarians (and
educators) to be totally cowed by threats, conjectures, rumors about a
cluster of ill-defined and misunderstood law. I think also that a lot
of cultural capital is being held hostage in the process...(as in the
case being cited here) This is NOT (NOT!) to downplay the necessity of
doing the right thing in terms of compliance. Nonetheless, I think
it's also important to go to bat for fair use and to take some risk on
behalf of broad access. It's what librarians were born to do. If it
were I, and if no money were changing hands, I'd show the damn film and
be done with it.

Gary

At 08:42 AM 6/1/2006, you wrote:

This may be so Gary but the question that started this was about
showing a film to a to a public audience and in this case
A feature film less than 20 years old which certainly is not without an
owner though it may well have been caught up in legal
Issues including bankruptcy. I don't think anything in 108 ever relates
to public showings.

On 6/1/06 11:17 AM, "Gary Handman" <ghandman@library.berkeley.edu>
wrote:

OK...this is thin ice I'm skating on, but...

I think the definition of and requirements for due diligence in relation
to copyright is very likely bound to mean different things for different
types of use and use contexts. Due diligence in relation to a library
wishing to perform a copyrighted work or preserve it under Section 108
rights ain't the same as due diligence in relation to a filmmaker
wishing to incorporate footage into another work. =20

Gary

At 05:21 AM 6/1/2006, you wrote:

Finding a holder of a copyright is not the hardest thing in the world to
do. I can say this honestly because it's what I do for much of my work.
It's like learning any job.

There are several people who do this for a living who have been known to
work at very reasonable prices. My guess is that due dilligence would be
defined as hiring one of these specialists or paying Thompson & Thompson
for a copyright search.=20

Yes, sometimes it does take a long time. It took me fifteen years to
find Elizabeth Rogers, the rights holder to People of the Wind, but I
did it because I thought it worth it. If a filmmaker had to do this for
a film in production, perhaps they'd use a still or a trailer instead --
or find another option. I'm facing many of these issues trying to clear
the music rights (four years and running) for KILLER OF SHEEP.

If anyone has seen Tony Buba's LIGHTNING OVER BRADDOCK (available at
Zeitgeist), it has a wonderful scene where he has to consider whether he
should pay $15,000 to CAMI for the rights to Jumpin' Jack Flash which is
absolutely, positively necessary for the scene. His solution was FAR
better than if he had paid for the rights.

A greedy copyright holder is not THE obstacle to art or education -- a
lack of imagination is.

Fan of the first place Mets,

Dennis Doros

Milestone Film & Video/Milliarium Zero

PO Box 128

Harrington Park, NJ 07640

Phone: 201.767.3117

Fax: 201.767.3035

milefilms@aol.com

www.milestonefilms.com < <http://www.milestonefilms.com>
http://www.milestonefilms.com > <http://www.milestonefilms.com> =20

=20

Gary Handman

Director

Media Resources Center

Moffitt Library

UC Berkeley

ghandman@library.berkeley.edu

http://www.lib.berkeley.edu/MRC

< <http://www.lib.berkeley.edu/MRC> http://www.lib.berkeley.edu/MRC >
<http://www.lib.berkeley.edu/MRC> *****

"In societies where modern conditions of production prevail,

all of life presents itself as an immense accumulation of
spectacles."

--Guy Debord=20

Proud Resident of a BLUE STATE
=20
Jessica Rosner
Kino International
333 W 39th St. 503
NY NY 10018
jrosner@kino.com
212-629-6880

Gary Handman
Director
Media Resources Center
Moffitt Library
UC Berkeley
ghandman@library.berkeley.edu
http://www.lib.berkeley.edu/MRC

*****

"In societies where modern conditions of production prevail,
all of life presents itself as an immense accumulation of
spectacles."
--Guy Debord=20

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Yes!  Couldn’t have said = it better myself, Gary (though Lord knows I’ve tried). =

 

On another note, as a Section 108 = nerd, I’ll point out that actually 108 DOES have something to do with performance = (though in a very narrow sense, and not having anything to do with film, except = news) in the section on works in their last 20 years:

 

(h)(1) For = purposes of this section, during the last 20 years of any term of copyright of a = published work, a library or archives, including a nonprofit educational = institution that functions as such, may reproduce, distribute, display, or PERFORM in = facsimile or digital form a copy or phonorecord of such work, or portions thereof, = for purposes of preservation, scholarship, or research, if such library or = archives has first determined, on the basis of a reasonable investigation, that = none of the conditions set forth in subparagraphs (A), (B), and (C) of paragraph = (2) apply.

(2) No = reproduction, distribution, display, or performance is authorized under this = subsection if — 

(A) the work = is subject to normal commercial exploitation;

(B) a copy or phonorecord of the work can be obtained at a reasonable price; = or

(C) the = copyright owner or its agent provides notice pursuant to regulations promulgated = by the Register of Copyrights that either of the conditions set forth in = subparagraphs (A) and (B) applies.

(3) The = exemption provided in this subsection does not apply to any subsequent uses by = users other than such library or archives.

(i) The rights of reproduction and = distribution under this section do not apply to a musical work, a pictorial, graphic or = sculptural work, or a motion picture or other audiovisual work other than an = audiovisual work dealing with news, except that no such limitation shall apply with = respect to rights granted by subsections (b) and (c), or with respect to = pictorial or graphic works published as illustrations, diagrams, or similar adjuncts = to works of which copies are reproduced or distributed in accordance with subsections (d) and (e).

mb

 

Michael Brewer

Slavic Studies, German Studies & = Media Arts Librarian

University of Arizona Library = A210

1510 E. University

P.O. Box 210055

Tucson, AZ 85721

Voice: = 520.307.2771

Fax: 520.621.9733

brewerm@u.library.arizona.e= du

-----Original = Message-----
From: owner-videolib@lists.berkeley.edu = [mailto:owner-videolib@lists.berkeley.edu] On Behalf Of Gary Handman
Sent: Thursday, June 01, = 2006 9:18 AM
To: = videolib@lists.berkeley.edu
Subject: Re: [Videolib] = Due diligence

 

108 has nothing to do with performance (never = said it did)

It occurs to me that it's increasingly easy for librarians (and = educators) to be totally cowed by threats, conjectures, rumors about a cluster of = ill-defined and misunderstood  law.  I think also that a lot of cultural = capital is being held hostage in the process...(as in the case being cited = here)  This is NOT  (NOT!) to downplay the necessity of doing the right = thing in terms of compliance.  Nonetheless,  I think it's also = important to go to bat for fair use and to take some risk on behalf of broad = access.  It's what librarians were born to do. If it were I, and if no money were = changing hands, I'd show the damn film and be done with it.

Gary


At 08:42 AM 6/1/2006, you wrote:

This may be so Gary but the question that started this was about  = showing a film to a  to a public audience and in this case
A feature film less than 20 years old which certainly is not without an = owner though it may well have been caught up in legal
Issues including bankruptcy. I don’t think anything in 108 ever = relates to public showings.


On 6/1/06 11:17 AM, "Gary Handman" <ghandman@library.berkeley.edu> wrote:

OK...this is thin ice I'm skating on, but...

I think the definition of and requirements for due diligence in relation = to copyright is very likely bound to mean different things for different = types of use and use contexts.  Due diligence in relation to a library = wishing to perform a copyrighted work or preserve it under Section 108 rights ain't = the same as due diligence in relation to a filmmaker wishing to incorporate = footage into another work. 

Gary

At 05:21 AM 6/1/2006, you = wrote:

Finding a holder of a copyright is not the hardest thing in the world to do. I = can say this honestly because it's what I do for much of my work. It's like = learning any job.

There are several people who do this for a living who have been known to work = at very reasonable prices. My guess is that due dilligence would be defined as = hiring one of these specialists or paying Thompson & Thompson for a = copyright search.

Yes, sometimes it does take a long time. It took me fifteen years to find = Elizabeth Rogers, the rights holder to People of the Wind, but I did it because I = thought it worth it. If a filmmaker had to do this for a film in production, = perhaps they'd use a still or a trailer instead -- or find another option. I'm = facing many of these issues trying to clear the music rights (four years and = running) for KILLER OF SHEEP.

If anyone has seen Tony Buba's LIGHTNING OVER BRADDOCK (available at = Zeitgeist), it has a wonderful scene where he has to consider whether he should pay = $15,000 to CAMI for the rights to Jumpin' Jack Flash which is absolutely, = positively necessary for the scene. His solution was FAR better than if he had paid = for the rights.

A greedy copyright holder is not THE obstacle to art or education -- a = lack of imagination is.

Fan of the first place = Mets,

Dennis Doros

Milestone Film & Video/Milliarium = Zero

PO Box 128

Harrington Park, NJ 07640

Phone: 201.767.3117

Fax: 201.767.3035

milefilms@aol.com

www.milestonefilms.com < http://www.milestonefilms.com >

 

Gary = Handman

Director

=

Media Resources = Center

Moffitt = Library

UC = Berkeley

ghandman@library.berkeley.= edu

http://www.lib.berkeley.edu/MRC<= /a>

  < http://www.lib.berkeley.edu/MRC > *****

"In societies where = modern conditions of production prevail,

    &n= bsp;      all of life presents itself as an immense accumulation of = spectacles."

          &nbs= p;   --Guy Debord





Proud Resident of a BLUE STATE
 
Jessica Rosner
Kino International
333 W 39th St. 503
NY NY 10018
jrosner@kino.com
212-629-6880

Gary = Handman
Director
Media Resources Center
Moffitt Library
UC Berkeley
ghandman@library.berkeley.edu
http://www.lib.berkeley.edu/MRC

*****

"In societies where modern conditions of production prevail,
           all of life presents itself as an immense accumulation of spectacles."
            &= nbsp;  --Guy Debord

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