Re: [Videolib] Due diligence

Gary Handman (ghandman@library.berkeley.edu)
Thu, 01 Jun 2006 12:26:04 -0700

--=====================_90381125==.ALT
Content-Type: text/plain; charset="iso-8859-1"; format=flowed
Content-Transfer-Encoding: quoted-printable

If the film is demonstrably unobtainable, no=20
longer in on the market anywhere and not likely=20
to be in the near future...and if it's a free=20
festival, I'd go to the mat for showing it. I=20
cannot, in any case, see any market impact=20
(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 course=20
>of what is basically a festival is never ever going to be considered =93fai=
r use=94
>I am only replying to the question that started=20
>this. None of these copyright exemptions is going to allow anyone to show
>An entire film to the public without clearence=20
>from rights holder and again feature films=20
>do in 98% of cases HAVE rights holders
>
>I may be misunderstanding this but I think you=20
>are making a HUGE leap from wanting to use a=20
>film in class and or for research and allowing
>It to be shown publicly .
>
>Again I am just going back to the ORIGINAL=20
>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.arizona.edu> wrote:
>
>Yes! Couldn=92t have said it better myself, Gary=20
>(though Lord knows I=92ve tried).
>
>On another note, as a Section 108 nerd, I=92ll=20
>point out that actually 108 DOES have something=20
>to do with performance (though in a very narrow=20
>sense, and not having anything to do with film,=20
>except news) in the section on works in their last 20 years:
>
>(h)(1) For purposes of this section, during the=20
>last 20 years of any term of copyright of a=20
>published work, a library or archives, including=20
>a nonprofit educational institution that=20
>functions as such, may reproduce, distribute,=20
>display, or PERFORM in facsimile or digital form=20
>a copy or phonorecord of such work, or portions=20
>thereof, for purposes of preservation,=20
>scholarship, or research, if such library or=20
>archives has first determined, on the basis of a=20
>reasonable investigation, that none of the=20
>conditions set forth in subparagraphs (A), (B), and (C) of paragraph (2)=
apply.
>
>(2) No reproduction, distribution, display, or=20
>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=20
>obtained at a reasonable price; or
>
>(C) the copyright owner or its agent provides=20
>notice pursuant to regulations promulgated by=20
>the Register of Copyrights that either of the=20
>conditions set forth in subparagraphs (A) and (B) applies.
>
>(3) The exemption provided in this subsection=20
>does not apply to any subsequent uses by users=20
>other than such library or archives.
>
>(i) The rights of reproduction and distribution=20
>under this section do not apply to a musical=20
>work, a pictorial, graphic or sculptural work,=20
>or a motion picture or other audiovisual work=20
>other than an audiovisual work dealing with=20
>news, except that no such limitation shall apply=20
>with respect to rights granted by subsections=20
>(b) and (c), or with respect to pictorial or=20
>graphic works published as illustrations,=20
>diagrams, or similar adjuncts to works of which=20
>copies are reproduced or distributed in=20
>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.edu
>-----Original Message-----
>From: owner-videolib@lists.berkeley.edu=20
>[<mailto:owner-videolib@lists.berkeley.edu]>mailto:owner-videolib@lists.ber=
keley.edu]=20
>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=20
>librarians (and educators) to be totally cowed=20
>by threats, conjectures, rumors about a cluster=20
>of ill-defined and misunderstood law. I think=20
>also that a lot of cultural capital is being=20
>held hostage in the process...(as in the case=20
>being cited here) This is NOT (NOT!) to=20
>downplay the necessity of doing the right thing=20
>in terms of compliance. Nonetheless, I think=20
>it's also important to go to bat for fair use=20
>and to take some risk on behalf of broad=20
>access. It's what librarians were born to do.=20
>If it were I, and if no money were changing=20
>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=20
>started this was about showing a film to a to=20
>a public audience and in this case
>A feature film less than 20 years old which=20
>certainly is not without an owner though it may=20
>well have been caught up in legal
>Issues including bankruptcy. I don=92t think=20
>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=20
>due diligence in relation to copyright is very=20
>likely bound to mean different things for=20
>different types of use and use contexts. Due=20
>diligence in relation to a library wishing to=20
>perform a copyrighted work or preserve it under=20
>Section 108 rights ain't the same as due=20
>diligence in relation to a filmmaker wishing to=20
>incorporate footage into another work.
>Gary
>
>
>At 05:21 AM 6/1/2006, you wrote:
>Finding a holder of a copyright is not the=20
>hardest thing in the world to do. I can say this=20
>honestly because it's what I do for much of my=20
>work. It's like learning any job.
>There are several people who do this for a=20
>living who have been known to work at very=20
>reasonable prices. My guess is that due=20
>dilligence would be defined as hiring one of=20
>these specialists or paying Thompson & Thompson for a copyright search.
>Yes, sometimes it does take a long time. It took=20
>me fifteen years to find Elizabeth Rogers, the=20
>rights holder to People of the Wind, but I did=20
>it because I thought it worth it. If a filmmaker=20
>had to do this for a film in production, perhaps=20
>they'd use a still or a trailer instead -- or=20
>find another option. I'm facing many of these=20
>issues trying to clear the music rights (four=20
>years and running) for KILLER OF SHEEP.
>If anyone has seen Tony Buba's LIGHTNING OVER=20
>BRADDOCK (available at Zeitgeist), it has a=20
>wonderful scene where he has to consider whether=20
>he should pay $15,000 to CAMI for the rights to=20
>Jumpin' Jack Flash which is absolutely,=20
>positively necessary for the scene. His solution=20
>was FAR better than if he had paid for the rights.
>A greedy copyright holder is not THE obstacle to=20
>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=20
><http://www.milestonefilms.com> <=20
><http://www.milestonefilms.com>=20
><http://www.milestonefilms.com>http://www.milestonefilms.com =20
> > <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>=20
> <http://www.lib.berkeley.edu/MRC>http://www.lib.berkeley.edu/MRC =20
> > <http://www.lib.berkeley.edu/MRC> *****
>"In societies where modern conditions of production prevail,
> all of life presents itself as an=20
> immense accumulation of spectacles."
> --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
>
> <http://www.lib.berkeley.edu/MRC> *****
>
>"In societies where modern conditions of production prevail,
> all of life presents itself as an=20
> immense accumulation of spectacles."
> --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=20
immense accumulation of spectacles."
--Guy Debord =20
--=====================_90381125==.ALT
Content-Type: text/html; charset="iso-8859-1"
Content-Transfer-Encoding: quoted-printable

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, see any market impact (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 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 copyright 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.arizona.edu> wrote:

Yes!  Couldn=92t have said it bett= er myself, Gary (though Lord knows I=92ve tried).
 
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, 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 =AD

(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.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

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 tha= t 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=92t 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 >  < < 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 >  *****
"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
 
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 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."
            &nbs= p;  --Guy Debord

--=====================_90381125==.ALT--

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.