Re: [Videolib] Due diligence

Jessica Rosner (jrosner@kino.com)
Thu, 01 Jun 2006 15:53:48 -0400

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Sorry but there is no question this film has an owner , just one very messe=
d
but most likely through bankruptcy.
Also no one has in fact attempted a =93real=94 search involving either a
copyright specialist or lawyer who most likely COULD track down
some legal rep for the film however it would cost more to do this than one
would ever spend on a film. This is NOT an orphan film,
it is not a film in it it=92s last 20 years of copyright. It is a recent film
with an owner that is difficult and expensive to track down
For the purposes for which it is needed

However the more crucial point is that no one not even the guys making the
film reported in the Times on Sunday
Has EVER made a claim that =93fair use=94 involves using an ENTIRE film . This
kind of thing ( showing a film in a festivalish setting)
has nothing to do with fair use. Those guys are pushing the envelope and
keeping it to less than 2 minutes .

Basically what we are arguing is would you ever get caught ( certainly not
with this film) however it is clearly not legal to do it
And nothing in section 108 or other sections has anything to do with showin=
g
a modern feature film for which you essentially do not
have the resources to track down the rights holder.

I feel like the ghost of Jed has invaded when we want to go so far beyond
anything resembling academic use

On 6/1/06 3:26 PM, "Gary Handman" <ghandman@library.berkeley.edu> wrote:

> If the film is demonstrably unobtainable, no longer in on the market anyw=
here
> and not likely to be in the near future...and if it's a free festival, I'=
d go
> to the mat for showing it. I cannot, in any case, see any market impact
> (perhaps the most significant test of fair use)
>=20
> Gary
>=20
> At 11:41 AM 6/1/2006, you wrote:
>> Sorry but showing an ENTIRE film in the course of what is basically a
>> festival is never ever going to be considered =93fair use=94
>> I am only replying to the question that started this. None of these copy=
right
>> exemptions is going to allow anyone to show
>> An entire film to the public without clearence from rights holder and ag=
ain
>> feature films do in 98% of cases HAVE rights holders
>>=20
>> I may be misunderstanding this but I think you are making a HUGE leap fr=
om
>> wanting to use a film in class and or for research and allowing
>> It to be shown publicly .
>>=20
>> Again I am just going back to the ORIGINAL question re CHINESE GHOST STO=
RY
>> and similar situations involving the showing
>> Of entire feature films OUTSIDE the face to face teaching exemption
>>=20
>>=20
>> On 6/1/06 1:54 PM, "Brewer, Michael" <brewerm@u.library.arizona.edu> wro=
te:
>>=20
>> Yes! Couldn=92t have said it better myself, Gary (though Lord knows I=92ve
>> tried).=20
>> =20
>> On another note, as a Section 108 nerd, I=92ll point out that actually 108=
DOES
>> have something to do with performance (though in a very narrow sense, an=
d 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 ter=
m of
>> copyright of a published work, a library or archives, including a nonpro=
fit
>> educational institution that functions as such, may reproduce, distribut=
e,
>> display, or PERFORM in facsimile or digital form a copy or phonorecord o=
f
>> such work, or portions thereof, for purposes of preservation, scholarshi=
p, 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.
>>=20
>> (2) No reproduction, distribution, display, or performance is authorized
>> under this subsection if =AD
>>=20
>> (A) the work is subject to normal commercial exploitation;
>>=20
>> (B) a copy or phonorecord of the work can be obtained at a reasonable pr=
ice;
>> or
>>=20
>> (C) the copyright owner or its agent provides notice pursuant to regulat=
ions
>> promulgated by the Register of Copyrights that either of the conditions =
set
>> forth in subparagraphs (A) and (B) applies.
>>=20
>> (3) The exemption provided in this subsection does not apply to any
>> subsequent uses by users other than such library or archives.
>>=20
>> (i) The rights of reproduction and distribution under this section do no=
t
>> apply to a musical work, a pictorial, graphic or sculptural work, or a m=
otion
>> 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 grap=
hic
>> works published as illustrations, diagrams, or similar adjuncts to works=
of
>> which copies are reproduced or distributed in accordance with subsection=
s (d)
>> and (e).
>>=20
>> mb
>> =20
>>=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]
> <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)
>=20
> 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 cite=
d
> here) This is NOT (NOT!) to downplay the necessity of doing the right th=
ing
> in terms of compliance. Nonetheless, I think it's also important to go t=
o 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 h=
ands,
> I'd show the damn film and be done with it.
>=20
> Gary
>=20
>=20
> At 08:42 AM 6/1/2006, you wrote:
>=20
>=20
> 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 o=
wner
> though it may well have been caught up in legal
> Issues including bankruptcy. I don=92t think anything in 108 ever relates t=
o
> public showings.
>=20
>=20
> 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 typ=
es 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
>=20
>=20
> 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 li=
ke
> 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 defin=
ed as
> hiring one of these specialists or paying Thompson & Thompson for a copyr=
ight
> 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 i=
n
> production, perhaps they'd use a still or a trailer instead -- or find an=
other
> 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 bett=
er
> than if he had paid for the rights.
> A greedy copyright holder is not THE obstacle to art or education -- a la=
ck 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 >
> <http://www.milestonefilms.com> < < <http://www.milestonefilms.com>
> http://www.milestonefilms.com > <http://www.milestonefilms.com>
> http://www.milestonefilms.com > < <http://www.milestonefilms.com>
> http://www.milestonefilms.com > <http://www.milestonefilms.com>
>=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> 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
>=20
>=20
>=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
>=20
> < <http://www.lib.berkeley.edu/MRC> http://www.lib.berkeley.edu/MRC >
> <http://www.lib.berkeley.edu/MRC> *****
>=20
> "In societies where modern conditions of production prevail,
> all of life presents itself as an immense accumulation of
> spectacles."
> --Guy Debord
>=20
>=20
>=20
>=20
>=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
>=20
> <http://www.lib.berkeley.edu/MRC> *****
>=20
> "In societies where modern conditions of production prevail,
> all of life presents itself as an immense accumulation of
> spectacles."
> --Guy Debord

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

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Re: [Videolib] Due diligence Sorry= but there is no question this film has an owner , just one very messed but = most likely through bankruptcy.
Also no one has in fact attempted  a “real” search involvi= ng either a copyright specialist or lawyer who most likely COULD track down<= BR> some legal rep for the film however it would cost more to do this than one = would ever spend on a film. This is NOT an orphan film,
it is not a film in it it’s last 20 years of copyright. It is a recen= t film with an owner that is difficult and expensive to track down
For the purposes for which it is needed

However the more crucial point is that no one not even the guys making the = film reported in the Times on Sunday
Has EVER made a claim that “fair use” involves using an ENTIRE = film . This kind of thing ( showing a film in a festivalish setting)
 has nothing to do with fair use. Those guys are pushing the envelope = and keeping it to less than 2 minutes .

Basically what we are arguing is would you ever get caught  ( certainl= y not with this film) however it is clearly not legal to do it
And nothing in section 108 or other sections has anything to do with showin= g a modern feature film for which you essentially do not
have the resources to track down the rights holder.

I feel like the ghost of Jed has invaded when we want to go so far beyond a= nything resembling academic use




On 6/1/06 3:26 PM, "Gary Handman" <ghandman@library.berkeley.e= du> wrote:

If the film is demonstrably unobtainable, no longer in = on the market anywhere and not likely to be in the near future...and if it's= a free <= SPAN STYLE=3D'font-size:12.0px'>festival, I'd go to the mat for showing it. &n= bsp; I cannot, in any case, see any market impact (perhaps the most sig= nificant test of fair use)

Gary

At 11:41 AM 6/1/2006, you wrote:
Sorry but showing an ENTIRE film in the course of what = is basically a festival is never ever going to be considered “fair use= ”
I am only replying to the question that started this. None of these copyrig= ht exemptions is going to allow anyone to show
An entire film to the public without clearence from rights holder and again= feature films do  in 98% of cases HAVE rights holders

I may be misunderstanding this but I think you are making a HUGE leap from = wanting to use a film in class and or for research and allowing
It to be shown publicly .

Again I am just going back to the ORIGINAL question re CHINESE GHOST STORY = and similar situations involving the showing
Of entire feature films OUTSIDE the face to face teaching exemption


On 6/1/06 1:54 PM, "Brewer, Michael" <brewerm@u.library.arizon= a.edu> wrote:

= Yes!  Couldn’t have said it better myself, Gary (though Lord know= s 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 sens= e, and not having anything to do with film, except news) in the section on w= orks in their last 20 years:
 
(h)(1) F= or purposes of this section, during the last 20 years of any term of copyrig= ht of a published work, a library or archives, including a nonprofit educati= onal 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 reason= able 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 un= der 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 regulation= s promulgated by the Register of Copyrights that either of the conditions se= t forth in subparagraphs (A) and (B) applies.

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

(i) The rights of reproduction and distribution under this sec= tion 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 wo= rk dealing with news, except that no such limitation shall apply with respec= t 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 su= bsections (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.edu
-----Original Message-----
From: owner-videolib@lists.berkeley.= edu [ mailto:owner-video= lib@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-d= efined and misunderstood  law.  I think also that a lot of cultura= l 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 importan= t 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 w= ere 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 bu= t the question that started this was about  showing a film to a  t= o a public audience and in this case
A feature film less than 20 years old which certainly is not without an own= er though it may well have been caught up in legal
Issues including bankruptcy. I don’t think anything in 108 ever relat= es 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 wishi= ng 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 incorpora= te 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 l= ike learning any job.
There are several people who do this for a living who have been known to wo= rk at very reasonable prices. My guess is that due dilligence would be defin= ed 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 E= lizabeth Rogers, the rights holder to People of the Wind, but I did it becau= se I thought it worth it. If a filmmaker had to do this for a film in produc= tion, perhaps they'd use a still or a trailer instead -- or find another opt= ion. 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 Zeitge= ist), it has a wonderful scene where he has to consider whether he should pa= y $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 h= ad 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://w= ww.milestonefilms.com> < &= lt;http://www.milestonefilms.com> http://www.milestonefilms.com > <http://www.milestonefilms.com>   < < <http://www.milestonefilms.com> http://www.milestonefilms.com = > <http://www.milestonefilms.c= om> http://www.milestonefilms= .com > < <http://www.mi= lestonefilms.com> http://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
  < <
<http://= www.lib.berkeley.edu/MRC> h= ttp://www.lib.berkeley.edu/MRC > <http://www.lib.berkeley.edu/MRC> http://www.lib.berkeley.edu/MRC > < <http://www.lib.berkeley.edu/MRC> http://www.lib.berkeley.edu/MRC &g= t; <http://www.lib.berkeley.edu= /MRC>   *****
"In societies where modern conditions of production prevail,
          all of life pre= sents itself as an immense accumulation of spectacles."
            --G= uy 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

 <
<http://www.lib.ber= keley.edu/MRC> http://www.l= ib.berkeley.edu/MRC > <h= ttp://www.lib.berkeley.edu/MRC>  *****

"In societies where modern conditions of production prevail,
           all of li= fe presents itself as an immense accumulation of spectacles."
            &nb= sp;--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

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

"In societies where modern conditions of production prevail,
           all of li= fe presents itself as an immense accumulation of spectacles."
            &nb= sp; --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

--B_3232022029_347433453--

VIDEOLIB is intended to encourage the broad and lively discussion of issues relating to the selection, evaluation, acquisition,bibliographic control, preservation, and use of current and evolving video formats in libraries and related institutions. It is hoped that the list will serve as an effective working tool for video librarians, as well as a channel of communication between libraries,educational institutions, and video producers and distributors.