Solo 1

John Solo
Professor Matt Moberly
Writing 010 (17)
April 13, 2015

Copyright in Filmmaking
Abstract
Copyright laws were originally intended to balance the rights between right owners and
content creators. However, the system has gone astray, and it needs to be reformed to
accommodate the needs of modern filmmakers. The copyright laws have failed to recognize the
unfair advantage that right owners have over filmmakers and a permission culture has been
developed as a result. The study discusses the areas where copyright laws need improvement on
like orphan works, length of copyright terms, and payments. It proposes to follow the two
successful models from Canada and YouTube which manages to address the problems that the
copyright laws have no answer to. The models suggest that filmmakers should be able to get a
license if the right owner is nowhere to be found after a period of time has elapsed. It also
explains how right owners can benefit from the advertising that comes from filmmakers and how
it can help foster an environment where both parties can exercise creativity safely. Ultimately,
this research paper explores the possibility of changing copyright to liberate filmmakers.

Background/Problem
The Copyright Act was originally intended to promote scientific and artistic progress.
George C. Hiavac and Edward J. Easterly states that copyright is a legal construction that
provides protections to works produced by an individual or entity (Hiavac et.al. 8). It applies to

Solo 2

both published and unpublished works. Copyright grants right owners the power to distribute the
material, build upon the work, and publicly display it. It promotes growth in any field that
requires producing an original new piece of work, because it prevent others people from
publishing someone elses work under their name and collecting unauthorized profit from it. The
protection allows artist to feel confident with sharing their art with the world. However, the
digital age has changed the culture of copyright. Filmmakers now have unlimited access to other
materials thanks to vast resources that the Internet provides. As a result, copyright laws have
become outdated, and filmmakers find it difficult producing films to their full potential with the
old copyright laws. Filmmakers sometimes have copyrighted material that are presented in their
films. They have to clear the rights with media gatekeepers, journalist or editors that filter the
work before publication, in order for them to distribute their film to the public and gain a profit
from it. According to Fred von Lohmann, filmmakers may be aware of fair use, which is a
copyright doctrine that permits the use of copyrighted works in certain circumstances without
having to get the owner's permission. However the current attitudes of modern gatekeepers still
discourage many filmmakers from making films. Broadcast and cable networks challenge every
material in a film that seems copyrighted even if it appeals to the fair use policy. Because of this,
many films are unable to be made, or filmmakers cease production of an existing project
completely. Producer Jeffrey Tuchman himself writes, "I haven't used fair use in the last ten
years, because from the point of view of any broadcast or cable network, there is no such thing as
fair use (Lohmann 128). As a result, the American public are unable to experience a film that
has reached its full potential and expresses its message freely, because fair use has failed to
protect it.
The rights clearance process is not easy for filmmakers. They have to clear the rights to
material in their film even if it is accidental or appeared for a brief moment. For example, if there

Solo 3

is copyright music in their film, the filmmakers has to either clear the rights with the respective
right owners, or replace the audio with something from the public domain. Sometimes, finding
the owners is just as difficult. The copyrighted material could be outdated, and the right owners
doesnt leave any traces for the filmmakers to find them. These works are called orphan works.
They have to go through this process for each copyrighted material that appears in their film,
which is overwhelming. Sometimes, they cant even identify which material is copyrighted in
their film. Easterly and Hiavac writes about how an individual or entity doesnt have to file for
a copyright in order for a work to be copyrighted (Hiavac et.al. 8). This just complicates the
process even further now that filmmakers have no reliable way of identifying which material is
copyrighted. Also, filmmakers have to pay an incomprehensible amount of money just to include
the material in their film, and it can be costly depending on the amount of copyrighted material
they have in their film. Sometimes, their budget is small, and they have to resort to a short
license. A short license expires quickly, and once it does they have to cease distribution of the
film. These companies set out unrealistic expectations for filmmakers, and it is slowly making
the film industry collapse.
If this continues, it will develop into a permission culture. Films wont be able to
authentically express their message freely, because there are music that are replaced with free
music that dont belong. Filmmakers will be afraid to incorporate certain parts in their films,
because of their fear with copyright. They will resort to playing it safe, and they will leave out
crucial parts in their film. Also, if right owners continues to place rights on more material, there
wont be much raw material for artist to work with, filmmakers wont be able to build upon the
works of others that inspire them without getting sued, and copyright will start to censor their
creativity. Copyright was intended to promote artistic and scientific progress. So far, it has done
nothing but reduce all progress if any.

Solo 4

Solution
Many would argue that the copyright rules are perfect the way it is and changing it would
only be detrimental to the right owners and the artist involved. They believe that the fair use
policy already protects filmmakers rights to incorporate copyrighted material in their own films
and being lenient will lead to piracy. According to Keith Aoki, Robert Greenwald relied heavily
on fair and made extensive use of Fox news clips in his critical documentary Outfoxed (Aoki
et.al.). The use was never challenged, and it seems that the fair use policy was doing a
tremendous job in protecting artists access to other material and putting it in their film.
However, the fair use policy isnt sufficient in dealing with the permission based culture that has
been created by the modern age. It is limited and favors commentary and parodies. The far use
policy neglects to protect films that accidently capture copyrighted material in the background.
Keith Aoki reports that John Else needed to clear the rights to Sing Faster. The reports says he
needed to cut and replace four and a half seconds from The Simpsons that were accidently
captured in one of the scenes (Aoki et.al.). This forces artists to be wary about their films and it
makes it less authentic. The Simpsons could have played a major role in portraying the life of the
citizen that the film was trying to do but instead John Else has to cut it out due to copyright
issues. The copyright laws right clearance process also makes it hard for filmmakers to
distribute their work. There are a lot of orphan works, and filmmakers already have a difficult
time finding copyrighted material as it is. Overall, there are plenty of issues that the current
copyright laws has no answers to.
Canadas copyright laws solves all of United States problems with copyright. In Sarah
Sklar-Heyns scholar article Battling Clearance Culture Shock, she advocates for Canadas fair
dealing laws because she believes Canada achieve[s] the most productive balance possible

Solo 5

between the opposing factions in the copyright debate (Skylar-Heyn). Canada attempts to
balance the right between users and right owners and gives their users more rights than United
States does. Canada gives users the right to non-deliberate filming of copyrighted material
(Skylar-Heyn). This means that any material that is accidently captured in their film is protected
under the Canadas fair dealings. Right owners still have the right to challenge everything else.
They also solve the problem of outdated material. Unlike in United States where they try to place
copyright on old historical material, Canada limits their license to twenty years before adding the
material to their public domain. This gives filmmakers the opportunity to cover historical topics
more in depth and have more access to historical documents for their films. Therell be more
primary sources in their films, which will strengthen their argument in films. Canada has also
made its best effort to tackle the orphan works problem. If the film has tried their best in locating
the right owners and cannot find them, then the Copyright Board issues the user with a
nonexclusive license. This is the most any country has done to tackle the orphan works problems.
Although I may have its flaws since others argue it is burdening, it is a great start.
Another solution would be to implement YouTubes method in dealing with copyright in
their videos. In How YouTube Thinks about Copyright, Margaret Gould Stewart, YouTubes
head of user experience, discusses how most right owners will allow the content with the
copyrighted material to be published to maximize their opportunities. There was a wedding video
that used Chris Browns song Forever and it garnered forty million views. Sony allowed it to
be published and they benefited from the advertising, sponsored links, and the free promotion.
After the release of the wedding video, the song Forever hit number one on iTunes even
though it was an old song. If this method was implemented in the filmmaking industry, this will

Solo 6

allow right owners and content creators to fully maximize their opportunities. Right owners will
be able to reach new audiences, earn more revenue, and create new art. (How YouTube).
These proposed solutions are meant to balance the rights between right owners and users
in the film industry. They are only adding to the current copyright law to accommodate the rising
issues with modern films that have never been tackled before. They also attempt to maximize
their opportunities and create a joyful environment where distribution is simple and resources
promote creativity and advancement. The original intent of copyright was to promote artistic and
scientific progress. With these solutions progress will definitely be made.

Conclusion
The unfair treatment of filmmakers in the copyright industry is often overlooked by many
individuals, because it doesnt directly concern them. However, it is frustrating for a filmmaker
to have a brilliant idea that has the potential to be impactful, but he/she dont have the resources
to bring it to life. Copyright is meant to advance scientific and artistic progress. It protects the
works of many creators, and it prevents others from profiting off someone elses hard work.
However, USs copyright laws favors right owners so much that it impedes filmmakers
progression. Right owners often challenge every copyright material that are present in a film
even if it is in the public domain. Filmmakers have to pay an incomprehensible amount to right
owners, distinguish which part of their films is copyrighted, and replace media to avoid lawsuits.
This is time consuming, and it distracts filmmakers from their craft. Instead of having to worry
about how theyre going to get their message across, they are more worried about which right
owner is going to sue them for which part of their film. They are more afraid of right owners
than they are in voicing their thoughts. To be fair, the demands for clearance and payments are
not what is wrong with the copyright law. Instead, they are the direct result of the permission

Solo 7

based culture that centers on the idea that owners have right to sue a filmmaker that uses six
seconds of their copyrighted song in their film. We have mistaken adding to old reputable ideas
as another form of piracy. It is not. Most filmmakers want to better society when incorporating
other material into their work.
Copyright definitely need to continue, because artist have no other method that allows
them to distribute their work safely to the public. However, imagine a world where filmmakers
have a few obstacles to overcome. Their two hundred dollar film being able to reach tens of
thousands of viewers and revolutionize the way they eat, work, or live. Low budget films being
able to enter film festivals, and audiences resonating with every second of the film. Right owners
and filmmakers prospering from the same shared ideas and spreading the same creative
atmosphere to others. Copyright is a great tool but it doesnt have to stop here. It needs to adapt
into the digital era so we can foster a creative environment where right owners and filmmakers
can both win.

Works Cited

Solo 8

Aoki, Keith, James Boyle, and Jennifer Jenkins. Bound by Law?: Tales from the Public
Domain. Durham, NC: Duke UP, 2008. Print.
Hiavac, George C., and Edward J. Easterly. "Understanding Copyright Laws and The Impact Of
The Digital Age." NACE Journal 73.3 (2013): 8-11. Academic Search Complete. Web. 8
Mar. 2014.
How Youtube Thinks about Copyright. Perf. Margaret Gould Stewart.Margaret Gould Stewart:.
TED, Feb. 2010. Web. 14 Mar. 2015.
Miller, Claire Cain. "YouTube Ads Turn Videos Into Revenue." The New York Times 2 Sept.
2010: n. pag. Print.
Sklar-Heyn, Sarah. "Battling Clearance Culture Shock: Comparing U.S. Fair Use and Canadian
Fair Dealing in Advancing Freedom Of Expression In Non-Fiction Film." Cardozo
Journal of International & Comparative Law 20.1 (2011): 233-276. Academic Search
Complete. Web. 14 Mar. 2015.
Von Lohmann, Fred. "Fair Use, Film, And The Advantages Of Internet Distribution." Cinema
Journal 46.2 (2007): 128-133. Academic Search Complete. Web. 14 Mar. 2015.