IFC, Shapiro Laying Down the Law in the Name of Fair Use
The closet El Santo fan in me fell head over heels for Lewis Beale’s piece about Nacho Libre and the luchador tradition in Sunday’s Times, but Elaine Dutka absolutely floored me with her close, considered look at the ways IFC and its documentaries are challenging studios’ exorbitant clip fees through the 165-year-old law known as the fair-use doctrine.
Granted, there is some smooth-talking in the network’s and its allies approach (“Fair use is the lubricant that allows creativity and copyright law to coexist,” said lawyer and former International Documentary Association president Michael Donaldson), but for all the shit I have given IFC TV’s Evan Shapiro in the last 12 months for one awkward rationale or another, he deserves a bundle of credit for challenging mid-six-figure licensing fees that would have sunk a pair of its most promising docs, including the just-premiered road movie paean Wanderlust:
Mr. Shapiro had vowed never to embark on another clip-heavy film after Xan Cassavetes’s Z Channel: A Magnificent Obsession, a costly 2004 profile of a cable network that used scenes from movies like Salvador and 400 Blows. Rights had to be purchased separately for home video and film festivals, and renewed periodically. But Wanderlust, set in motion by a predecessor, was a chance to set a precedent.
“We’re taking on the fight not only with Wanderlust but also with the upcoming This Film Is Not Yet Rated,” said Mr. Shapiro, referring to a clip-dependent critique of the film ratings system set for release in theaters later this year. “That was made, from the start, under the fair-use doctrine, as all of our documentaries will be from now on.”
Director Kirby Dick had alluded to this tack during a Not Yet Rated preview in April, but as far as I know, Dutka’s piece is the first real exploration of the issues: You have the French rights-holder to Breathless accusing IFC of blackmail; you have Warner Bros. slashing its licensing charges by more than 90 percent; and you have no less a legal titan (and cautious optimist) than Lawrence Lessig getting IFC’s back: “Shapiro is fighting the good fight. … But the danger of drawing a line in the sand is that others will try to erase it.” If you did not catch this Sunday, start your four-day procrastination work week right and give Dutka a read.
It was a very good piece, because more people need to be aware of the intricacies of the Fair Use doctrine, but I think IFC took the wrong route here. The studios have always been more than willing to work with truly independent and non-profit productions, offering very reasonable rates when it was called for.
But, let’s face it, IFC is a for-profit company that is going to make money from this film, through broadcast and eventual other venues like DVD, broadband, foreign, etc. And, if it doesn’t make scads of money, it is being used as a high-profile marketing piece to reinforce the IFC brand. In this case, using the words “independent film” does not necessarily make it true.
And, when IFC