Re: [Videolib] Due diligence

Jessica Rosner (jrosner@kino.com)
Thu, 01 Jun 2006 18:24:57 -0400

> This message is in MIME format. Since your mail reader does not understand
this format, some or all of this message may not be legible.

--B_3232031098_347995740
Content-type: text/plain;
charset="windows-1254"
Content-transfer-encoding: quoted-printable

Sorry but I think you are confusing the fact that you can =93get away=94 with
something with the idea that it is either legal or correct
In the first place THIS IS A RED HERRING. NEARLY ALL FILMS INCLUDING THE
ONE THAT STARTED THIS have are under copyright and have owners
The fact that the cost of finding them and getting the rights is often
prohibitive is irrelevant. If you are serious about =93due diligence=94 than
hire someone
With expertise to track the rights down . That is what distributors do whe=
n
we need to find a film.
Why do I have to keep repeating that ? This is NOT some obscure doc made in
the 40s distributed by a company no one has heard of in 50 years
These films HAVE owners.
It is LONG established that =93fair use=94 is intended to allow PORTIONS of a
copyrighted work to be used in another context, other than the idea that yo=
u
want to show some film in a fest do you have ANY situation in which an
entire work of fiction has been allowed to be used without paying a rights
holder ?

I can think of two very cranky rights holders in the US who own films that
you might in theory have trouble tracking to them but they
have both taken big time legal action against non profits ( and for profits=
)
who showed their films. It is not too likely too happen
But in these days of the internet I know some rights holders overseas that
track things down as well

What really mystifies me here is why any librarian or media person would
want to skirt or push the law to show a film in a festival ?
I mean there are thousands and thousands of films you can=92t show in
festivals for reasons of both rights and availability. There is no
Special right to show film A in a public setting. If you can=92t clear it,
FIND ANOTHER FILM. What next MK2 says you can=92t show CITY LIGHTS but
Hey show it anyway ? Too much trouble to find the rights holder to MOON AN=
D
SIXPENCE, no legal copy of PORGY AND BESS etc etc etc
Does not mean you can show them ?
=93Fair Use=94 or Orphan Films or whatever false excuse you want to foist up
have no legal basis for ever showing a copyrighted work
In a public setting

On 6/1/06 5:41 PM, "Gary Handman" <ghandman@library.berkeley.edu> wrote:

> No, Patty... The uses you've cited are fair uses, true, but fair use is =
a
> considerably broader concept. Fair use is a purposefully vague concept =
that
> dates back to British common law (Statute of Queen Anne, 1709) and was
> subsequently carried over into US law by the framers of the constitution.=
It
> allows exemptions from the copyright owner's exclusive rights in a very
> loosely defined set of contexts. As we're all sick of hearing by now, th=
ere
> are four basic tests...yadda yadda yadda.
>=20
> I ain't never been to law school and try to avoid lawyers whenever I can,
> but...it seems to me that the concept of FU is expansive enough to allow
> culturally beneficial uses outside of the ones you cite PROVIDED the uses=
can
> stand up under the litmus tests outlined by the Copyright law of 1976, A=
free
> screening in a cultural establishment (such as a library, a church, a
> community hall) of a work that is determined to be completely unavailable=
for
> purchase or licensing, is not likely to be available for a long time (if
> ever), and whose creators will suffer absolutely NO market loss whatsoeve=
r is
> worth the risk...
>=20
> How invites abuse? Each case must be weighed and tested on its own merit=
s...
> I think we need to be conservative in our assessments of what may be fair=
use,
> without being petrified into inaction, fear and trembling...
>=20
> Gary
>=20
>=20
> At 01:53 PM 6/1/2006, you wrote:
>> Fair use is for "purposes such as criticism, comment, news reporting,
>> teaching..scholarship or research", NOT free film festivals. This is a
>> slippery slope that almost invites abuse.
>> --Patty=20
>> ______________________________________
>> Patty Hornbeck
>> Media Resources Development Coordinator
>> Middlebury College Library
>> 110 Storrs Ave. / M212
>> Middlebury, VT 05753
>> (802)443-2268 ph.
>> (802)443-5698 fax
>> -----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: Thu, June 01, 2006 4:22 PM
>> To: videolib@lists.berkeley.edu
>> Subject: Re: [Videolib] Due diligence
>>=20
>> It DOES have something to do with fair use, Jessica. There is nothing i=
n the
>> concept of fair use that says you can't show an entire film. Although o=
ne of
>> the tests of FU is
>> the amount and substantiality of the portion used in relation to the
>> copyrighted work as a whole, perhaps most significant is
>>=20
>> --The effect upon the potential market for or value of the copyrighted w=
ork
>> and
>> --The purpose and character of the use, including whether such use is of=
a
>> commercial nature or is for nonprofit educational purposes.
>>=20
>> As I contended before, if there is virtually no impact on the market (th=
ere
>> can't be impact if the item isn't being sold and if no profit is being m=
ade)
>> I'd call it fair use...
>>=20
>> I NEVER said 108 had anything to do with performance, for God sake!
>>=20
>> xoxoxo
>>=20
>> Gary
>>=20
>> At 12:53 PM 6/1/2006, you wrote:
>>> Sorry but there is no question this film has an owner , just one very m=
essed
>>> 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
>>>=20
>>> 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 . T=
his
>>> kind of thing ( showing a film in a festivalish setting)
>>> has nothing to do with fair use. Those guys are pushing the envelope a=
nd
>>> keeping it to less than 2 minutes .
>>>=20
>>> 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 sh=
owing
>>> a modern feature film for which you essentially do not
>>> have the resources to track down the rights holder.
>>>=20
>>> I feel like the ghost of Jed has invaded when we want to go so far beyo=
nd
>>> anything resembling academic use
>>>=20
>>>=20
>>>=20
>>>=20
>>> On 6/1/06 3:26 PM, "Gary Handman" <ghandman@library.berkeley.edu> wrote=
:
>>>=20
>>> 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
>>> festival, I'd go to the mat for showing it. I cannot, in any case, se=
e any
>>> market impact (perhaps the most significant test of fair use)
>>>=20
>>> Gary
>>> At 11:41 AM 6/1/2006, you wrote: Sorry but showing an ENTIRE film in th=
e
>>> course of what is basically a festival is never ever going to be consid=
ered
>>> =93fair use=94 I am only replying to the question that started this. None o=
f
>>> these copyright exemptions is going to allow anyone to show An entire f=
ilm
>>> to the public without clearence from rights holder and again feature fi=
lms
>>> do in 98% of cases HAVE rights holders
>>> I may be misunderstanding this but I think you are making a HUGE leap f=
rom
>>> wanting to use a film in class and or for research and allowing It to b=
e
>>> shown publicly .
>>> Again I am just going back to the ORIGINAL question re CHINESE GHOST ST=
ORY
>>> and similar situations involving the showing Of entire feature films OU=
TSIDE
>>> the face to face teaching exemption
>>>=20
>>> On 6/1/06 1:54 PM, "Brewer, Michael" <brewerm@u.library.arizona.edu> wr=
ote:
>>>=20
>>> Yes! Couldn=92t have said it better myself, Gary (though Lord knows I=92ve
>>> tried).=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 sen=
se,
>>> 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 preserva=
tion,
>>> scholarship, or research, if such library or archives has first determi=
ned,
>>> 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 =AD
>>> (A) the work is subject to normal commercial exploitation;
>>> (B) a copy or phonorecord of the work can be obtained at a reasonable p=
rice;
>>> or
>>> (C) the copyright owner or its agent provides notice pursuant to regula=
tions
>>> 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.
>>>=20
>>> (i) The rights of reproduction and distribution under this section do n=
ot
>>> 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 resp=
ect
>>> to rights granted by subsections (b) and (c), or with respect to pictor=
ial
>>> or graphic works published as illustrations, diagrams, or similar adjun=
cts
>>> to works of which copies are reproduced or distributed in accordance wi=
th
>>> 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] <
>>> 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 educato=
rs)
>>> to be totally cowed by threats, conjectures, rumors about a cluster of
>>> ill-defined 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 ci=
ted
>>> 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
>>>=20
>>> At 08:42 AM 6/1/2006, you wrote:
>>>=20
>>> This may be so Gary but the question that started this was about showi=
ng a
>>> film to a to a public audience and in this case A feature film less th=
an 20
>>> years old which certainly is not without an owner though it may well ha=
ve
>>> been caught up in legal Issues including bankruptcy. I don=92t think anyt=
hing
>>> in 108 ever relates to public showings.
>>>=20
>>> On 6/1/06 11:17 AM, "Gary Handman" <ghandman@library.berkeley.edu> wrot=
e:
>>> 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 wor=
k 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 wor=
k.
>>> Gary
>>>=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 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 tryi=
ng 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 h=
e
>>> should pay $15,000 to CAMI for the rights to Jumpin' Jack Flash which i=
s
>>> absolutely, positively necessary for the scene. His solution was FAR be=
tter
>>> than if he had paid for the rights. A greedy copyright holder is not TH=
E
>>> obstacle to art or education -- a lack of imagination is. Fan of the fi=
rst
>>> 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 > <
>>> 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=
>
>>> 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
>>> Jessica Rosner Kino International 333 W 39th St. 503 NY NY 10018
>>> jrosner@kino.com 212-629-6880 Gary Handman Director Media Resources Cen=
ter
>>> 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
>>>=20
>>>=20
>>>=20
>>> 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 Cen=
ter
>>> 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 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
>>=20
>> Gary Handman
>> Director
>> Media Resources Center
>> Moffitt Library
>> UC Berkeley
>> ghandman@library.berkeley.edu
>> http://www.lib.berkeley.edu/MRC
>>=20
>> *****
>>=20
>> "In societies where modern conditions of production prevail,
>> all of life presents itself as an immense accumulation of
>> spectacles."
>> --Guy Debord
>=20
> 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

--B_3232031098_347995740
Content-type: text/html;
charset="windows-1254"
Content-transfer-encoding: quoted-printable

Re: [Videolib] Due diligence Sorry= but I think you are confusing the fact that  you can “get away&#= 8221; with something with the idea that it is either legal or correct
In the first place THIS IS A  RED HERRING. NEARLY ALL FILMS INCLUDING = THE ONE THAT STARTED THIS have are under copyright and have owners
The fact that the cost of finding them and getting the rights is often proh= ibitive is irrelevant. If you are serious about “due diligence” = than hire someone
With expertise to track the rights down . That  is what distributors d= o when we need to find a film.
Why do I have to keep repeating that ? This is NOT some obscure doc made in= the 40s distributed by a company no one has heard of in 50 years
These films HAVE owners.
It is LONG established that “fair use” is intended to allow POR= TIONS of a copyrighted work to be used in another context, other than the id= ea that you
want to show some film in a fest do you have ANY  situation in which a= n entire work of fiction has been allowed to be used without paying a rights= holder ?

I can think of two very cranky rights holders in the US who own films that = you might in theory have trouble tracking to them but they
have both taken big time legal action against non profits ( and for profits= ) who showed their films. It is not too  likely too happen
But in these days of the internet I know some rights holders overseas that = track things down as well

What really mystifies me here is why any librarian or media person would wa= nt to skirt or push the law to show a film in a festival ?
I mean there are thousands and thousands of films you can’t show in f= estivals for reasons of both rights and availability. There is no
Special right to show film A in a public setting. If you can’t clear = it, FIND ANOTHER  FILM. What next MK2 says you can’t show CITY LI= GHTS but
Hey show it anyway ? Too  much trouble to find the rights holder to MO= ON AND SIXPENCE,  no legal copy of  PORGY AND BESS etc etc etc
Does not mean you can show them ?
“Fair Use” or Orphan Films or whatever false excuse you want to= foist  up have no legal basis for ever showing a copyrighted work
In a  public setting






On 6/1/06 5:41 PM, "Gary Handman" <ghandman@library.berkeley.e= du> wrote:

No, Patty...  The uses you've cited are fair uses,= true, but fair use is a considerably broader concept.   Fair use = is a purposefully vague concept that dates back to British common law (Statu= te of Queen Anne, 1709)  and was subsequently carried over into US law = by the framers of the constitution.  It allows exemptions from the copy= right owner's exclusive rights in a very loosely defined set of contexts. &n= bsp;As we're all sick of hearing by now, there are four basic tests...yadda = yadda yadda.

I ain't never been to law school and try to avoid lawyers whenever I can, b= ut...it seems to me that the concept of FU is expansive enough to allow cult= urally beneficial uses outside of the ones you cite PROVIDED the uses can st= and up under the litmus tests outlined by the Copyright law of 1976,  A= free screening in a cultural establishment (such as a library, a chu= rch, a community hall) of a work that is determined to be completely unavail= able for purchase or licensing, is not likely to be available for a long tim= e (if ever), and whose creators will suffer absolutely NO market loss whatso= ever is worth the risk...

How invites abuse?  Each case must be weighed and tested on its own me= rits...  I think we need to be conservative in our assessments of what = may be fair use, without being petrified into inaction, fear and trembling..= .

Gary


At 01:53 PM 6/1/2006, you wrote:
Fair use is for "purposes su= ch as criticism, comment, news reporting, teaching..scholarship or research&= quot;, NOT free film festivals. This is a  slippery slope that almost i= nvites abuse.
--Patty
<= FONT FACE=3D"Comic Sans MS, Verdana, Helvetica, Arial">_______________________= _______________
Patty Hornbeck
Media Resources Development Coordinator
Middlebury College Library
110 Storrs Ave. / M212
Middlebury, VT 05753
(802)443-2268 ph.
(802)443-5698 fax
-----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: Thu, June 01, 2006 4:22 PM
To: videolib@lists.berkeley.edu
Subject: Re: [Videolib] Due diligence

It DOES have something to do = with fair use, Jessica.  There is nothing in the concept of fair use th= at says you can't show an entire film.  Although one of the tests of FU= is
the amount and substantiality of the portion used in relation to the copyri= ghted work as a whole, perhaps most significant is

--The effect upon the potential market for or value of the copyrighted work= and
--The purpose and character of the use, including whether such use is of a = commercial nature or is for nonprofit educational purposes.

As I contended before, if there is virtually no impact on the market (there= can't be impact if the item isn't being sold and if no profit is being made= ) I'd call it fair use...

I NEVER said 108 had anything to do with performance, for God sake!

xoxoxo

Gary

At 12:53 PM 6/1/2006, you wrote:
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 anywhe= re 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 im= pact (perhaps the most significant test of fair use)

Gary
At 11:41 AM 6/1/2006, you wrote: Sorry but showing an ENTIRE film in the co= urse of what is basically a festival is never ever going to be considered &#= 8220;fair use” I am only replying to the question that started this. N= one of these copyright exemptions is going to allow anyone to show An entire= film to the public without clearence from rights holder and again feature f= ilms 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 sho= wn 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 th= at 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 purpo= ses 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 ins= titution that functions as such, may reproduce, distribute, display, or PERF= ORM in facsimile or digital form a copy or phonorecord of such work, or port= ions thereof, for purposes of preservation, scholarship, or research, if suc= h library or archives has first determined, on the basis of a reasonable inv= estigation, 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 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 Librari= an University of Arizona Library A210 1510 E. University P.O. Box 210055 Tuc= son, 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 H= andman Sent: Thursday, June 01, 2006 9:18 AM To: videolib@lists.berkeley.edu= Subject: Re: [Videolib] Due diligence 108 has nothing to do wi= th 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 but the question that started this was about &n= bsp;showing a film to a  to a public audience and in this case A featur= e 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 diff= erent types of use and use contexts.  Due diligence in relation to a li= brary 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 t= o 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 peo= ple 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 th= ese specialists or paying Thompson & Thompson for a copyright search. Ye= s, sometimes it does take a long time. It took me fifteen years to find Eliz= abeth 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 productio= n, 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 yea= rs and running) for KILLER OF SHEEP. If anyone has seen Tony Buba's LIGHTNIN= G 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 Jump= in' 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 copyrig= ht holder is not THE obstacle to art or education -- a lack of imagination i= s. Fan of the first place Mets, Dennis Doros Milestone Film & Video/Mill= iarium Zero PO Box 128 Harrington Park, NJ 07640 Phone: 201.767.3117 Fax: 20= 1.767.3035 milefilms@aol.com www.milestonefilms.com <http://www.milestonefilms.com>  < http://www.milestonefilms.com > <= < http://www.milestonefilms.com<= /a> > http://www.milestonefilms.c= om > < http://www.mileston= efilms.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 &= gt; < http://www.milestonefilms.c= om >  
Gary Handman Director Media Resources Center Moffi= tt Library UC Berkeley ghandman@library.berkeley.edu http://www.lib.berkeley.edu/MRC   < <= < http://www.lib.berkeley.edu/= MRC > http://www.lib.berkel= ey.edu/MRC > < http://ww= w.lib.berkeley.edu/MRC > ht= tp://www.lib.berkeley.edu/MRC > < < http://www.lib.berkeley.edu/MRC > http://www.lib.berkeley.edu/MRC > < http://www.lib.berkeley.edu/MRC > &= nbsp; ***** "In societies where modern conditions of production pr= evail,           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 1001= 8 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.be= rkeley.edu/MRC > http://www= .lib.berkeley.edu/MRC > < http://www.lib.berkeley.edu/MRC >  *****
"In societies where modern conditions of production prevail,  &nb= sp;         all of life present= s itself as an immense accumulation of spectacles."    &= nbsp;        --Guy Debord



Proud Resident of a BLUE STATE
  Jessica Rosner Kino International 333 W 39th St. 503 NY NY 1001= 8 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.b= erkeley.edu/MRC > *****
"In societies where modern conditions of production prevail,  &nb= sp;         all of life present= s itself as an immense accumulation of spectacles."    &= nbsp;         --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 li= fe presents itself as an immense accumulation of spectacles."
            &nb= sp; --Guy Debord

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_3232031098_347995740--

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.