Ed. note: This post appears courtesy of our friends at Techdirt. We’ll be sharing law-related posts from Techdirt from time to time in these pages.
Just a few weeks ago, we had a story about how an awesome looking documentary about comic artists needed to hit up Kickstarter to raise more money solely to purchase licenses to some of the artwork & video clips in the film. Most of the copyright holders let them use the work for free, but a few were demanding payment — often thousands of dollars for a single image or short clip. As we’ve noted, documentary filmmakers are scared to death of relying on fair use, because they don’t want to get sued (and some insurance providers won’t give you insurance if you plan to rely on fair use).
And, now, there’s an even crazier example. Two huge fans of the cult favorite TV show, Arrested Development have made a documentary about the show, talking to a ton of people who created and acted in the show, as well as to a bunch of fans. Given that a new season (via Netflix) is quickly approaching, getting this documentary out would make sense. The film is finished according to the filmmakers. Done done done. So why are they asking Kickstarter for $20,053? Yup, you guessed it. Copyright licensing issues. And this time, it’s really crazy…
After five years, we’re finally close to releasing the documentary. Our final step is to pay the network for photos from the set of the show. These photos are extremely relevant to the story, and we can’t move forward with the release of the documentary until our fees are paid to the network. This is where you come in. Help us pay the network fees so every Arrested fan can see this documentary!
Yes, photos from the set. And, “the network” in this case is 20th Century Fox. This seemed so ridiculous to me that I asked the filmmakers, Jeff Smith & Neil Lieberman, for the details, and they said that these are photos taken by a variety of people on set and that the people who took the photos gave them to Jeff & Neil willingly, but that “the network is claiming copyright.” Just to be clear, Jeff & Neil don’t have a problem with this, saying that they believe that this is “within the network’s rights” to make that claim and they emphasized that Fox was giving them a “deep discount on the photos” and that it “could have been much worse” otherwise.
While it’s great that the filmmakers are fine with this, it still seems quite troubling to me. Whoever took the photos in the first place would own the copyright on the basic photos themselves. This implies that Fox is claiming copyright on the set itself, which appears in the images (or, they’re lying and claiming copyright on something they have no copyright on). And, yes, they could potentially claim copyright on the set — but that doesn’t make this any less crazy. Jeff & Neil would have a massively clear fair use argument if they were challenged on using these images. It is not as if the use of those images would somehow harm the “market” for “the set” itself (which is about all the network could possibly be claiming copyright on). It would obviously be a transformative use, and they’d just be displaying parts of the set. This is about as open and shut a fair use case as you could possibly imagine.
And, really, this is doubly ridiculous, because this documentary is only going to help promote the show more, not harm it in any way… oh wait. Fox no longer benefits from that because Fox cancelled the show and the new season is happening on Netflix instead… Perhaps that’s what this is about. The cash from this Kickstarter could have gone into all sorts of actually useful things, including more marketing and promotions for the documentary (which does look great). But, instead, it’s going into Fox’s bank account, because Rupert Murdoch needs it more than two independent documentary filmmakers who were huge fans of the show. I thought copyright was supposed to be about helping filmmakers, not forcing them to waste $20,000+ dollars on a bogus copyright claim.
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