Re: [Videolib] Due diligence

M. Claire Stewart (claire-stewart@northwestern.edu)
Thu, 1 Jun 2006 17:01:41 -0500

Public performance is one of the exclusive rights
of the copyright holder. Fair use is a limitation
on the copyright holder's exclusive rights (in
the form of an affirmative defense, as has been
previously discussed on this list). If you are
suggesting that a fair use argument could never
be advanced for a public performance, you are
wrong.

You and Patty might be correct that a court might
not view this particular case as a fair use, but
then again, you might be incorrect. The list of
uses in the section are illustrative (criticism,
teaching, etc.), not comprehensive.

Claire

>Bottom line you are showing a COPYRIGHTED film
>to a PUBLIC audience WITHOUT paying a rights
>holder because
>It is basically too EXPENSIVE to find the rights
>holder. Does not pass the smell test.
>Like I keep saying ( and Dennis also) you CAN
>find rights holders of feature films but it is
>often very expensive and time consuming
>Due diligence is not about cost but about doing
>the standard and accepted practice of finding a
>rights holder
>The standard and accepted practice of locating a
>rights holder is to HIRE a copyright
>researcher/lawyer to track it down
>Just being told by exhibitors and other
>companies that in essesense they don't know who
>owns something is legally meaningless
>
>For the record CHINESE GHOST STORY is perfectly marketable and valuable film.
>
>I think you know better than to believe that
>"fair use" could ever involve public showing of
>copyrighted film
>No matter how much of a bitch it is to track it down.
>
>Much of this boils down to the fact that you
>won't get caught but I am upset that you would
>think it either legal
>Or proper to do it.
>
>Kino often gets rights to films that have been
>out of distribution for years, owned by
>difficult and cranky right holders in
>Europe. We would be most upset if venues had in
>the meantime just projected old video or DVD
>copies because they had
>Not been able or willing to track these guys
>down and frankly that is what you are suggesting
>& supporting.
>
>
>
>
>On 6/1/06 4:22 PM, "Gary Handman" <ghandman@library.berkeley.edu> wrote:
>
>It DOES have something to do with fair use,
>Jessica. There is nothing in the concept of
>fair use that 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 copyrighted 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 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's 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 "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 ( 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 showing 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 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 "fair use"
>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'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.edu
>-----Original Message-----
>
>From: owner-videolib@lists.berkeley.edu [
><mailto:owner-videolib@lists.berkeley.edu]>mailto:owner-videolib@lists.berkeley.edu]
><
><mailto:owner-videolib@lists.berkeley.edu]><mailto:owner-videolib@lists.berkeley.edu]>
><mailto:owner-videolib@lists.berkeley.edu]>mailto: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 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><http://www.milestonefilms.com>
><
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> < <
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> < < <
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><http://www.milestonefilms.com><http://www.milestonefilms.com>
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>< <
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><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>
><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>
><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>
><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
>
>
>
>
>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><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><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
>
>
>
>
>
>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><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
>
>
>
>
>
>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><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

-- 
____________________________________________________
M. Claire Stewart
Head, Digital Media Services, Marjorie I. Mitchell Multimedia Center
Coordinator of Digitization Projects, Northwestern University Library
(847) 467-1437
claire-stewart@northwestern.edu
http://www.library.northwestern.edu/cstewart/
http://copyrightreadings.blogspot.com

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