Filmmakers' unfair argument against 'fair use'
Published 4:00 am, Sunday, March 20, 2011
"Slaying the Dragon: Reloaded," a compelling new documentary that critiques the portrayal of Asian women in U.S. visual media, has drawn protests from an unlikely quarter. It wasn't from Hollywood, which was deservedly scoured for its depiction of Asian women in films from "Rush Hour 2" to "Sex and the City." It wasn't from conservative commentators claiming political correctness run amok.
Instead, the objection to the documentary by Elaine Kim, a UC Berkeley professor of Asian American studies, emerged from six Asian American filmmakers just before its premiere last week at the San Francisco International Asian American Film Festival. Their complaint: that she used clips of their work without seeking their permission.
"It was just a little horrifying to the filmmakers who own the rights to their work," said Quentin Lee, whose 2009 film "The People I've Slept With," about a promiscuous woman confronted with an unplanned pregnancy, was among Kim's many targets.
The controversy came to my attention when Lee and five fellow filmmakers submitted an opinion piece (sfg.ly/acthDb) to The Chronicle demanding that Kim either properly license the clips she used in the documentary or pull it from the film festival.
My initial reaction to their essay, which compared the inclusion of clips from their films to "using a song by Madonna or Lady Gaga without clearing those rights," was that their argument seemed a stretch. As Kim told Lee in an e-mail, her entire budget for "Slaying the Dragon: Reloaded" was less than $15,000. If she had had to cut checks for every clip in her documentary - 66 films, four television shows - it would have become prohibitively expensive in a hurry.
Moreover, how many of the producers of the films in question would have granted permission for clips to be included in a documentary about the portrayal of Asian American women? If the producers of "Rush Hour 2" are smart enough to identify the lowest-common denominators of American pop culture, then they surely are smart enough to anticipate that the documentary would take a dim view of a scene where Chris Tucker and Jackie Chan are presented with a buffet of scantily clad Asian women.
Which it did.
For me, as a journalist and champion of free expression, the upshot seemed clear: You cannot give the targets of social commentary the ability to veto it. Does anyone think for a second that the copyright holders of "Rush Hour 2" would consent to allow scenes of that movie to appear in Kim's documentary at any price?
It turns out the laws on "fair use" are a bit complicated. The U.S. Copyright Act of 1976 attempted to balance the rights of artists and writers to protect their works against the need to allow teachers, journalists, researchers, social critics and others to use portions of such works.
The widely accepted guidelines on the current interpretation of the law are spelled out in a "best practices" statement by American University's Center for Social Media. It protects "fair use" of copyrighted material in documentaries in four categories:
-- As an object of "social, political or cultural critique."
-- Used to illustrate an argument or point.
-- Captured in the process of filming something else. (Example: scene from a documentary that incidentally includes a poster on the wall or music in the background."
-- Used in a historical sequence.
Jennifer Urban, a UC Berkeley law professor who studies fair-use issues, said courts tend to use two tests in determining fair use. One, whether the purpose of the inclusion of copyrighted material was to simply replicate it or "transform it" for another purpose - such as commentary. Two, "did you use more than you needed?"
Elaine Kim would seem to be on safe ground. Her documentary clearly was a social, political and cultural critique - and a devastatingly convincing one at that. The rapid pace of the 30-minute documentary allowed for no more than fleeting images of any one film.
Still, the ambiguity in the fair-use principles - and the potential damages against a filmmaker found in violation - have resulted in "really conservative decisions" by documentarians to make clear their rights to copyrighted material they cite, according to Urban.
One of the more famous examples was the acclaimed, 14-part, 1987 documentary, "Eyes on the Prize," which chronicled the civil rights movement between 1954 and 1965. The producers of that series, which was rich in archival footage, had been on a stressed budget and had obtained only five-year rights licenses. The series spent years in limbo, inaccessible to schools and video rentals, until this seminal account of American history was rescued through the efforts of philanthropists who bankrolled a team of lawyers to get the necessary clearances. It was finally released on DVD and re-aired on public television last year.
"Slaying the Dragon: Reloaded," an update on Deborah Gee's pathbreaking 1988 documentary "Slaying the Dragon," has yet to encounter resistance from the big-money Hollywood forces it skewers.
But the protest from the smaller independent filmmakers who objected has achieved at least one slice of censorship: Kim deleted the clip from "The People I've Slept With."
"We did not remove the clip because we were concerned it was not fair use," Kim emphasized in an e-mail. "We removed it because we do not have the time or resources to fight against a filmmaker that personally attacked us and was being unreasonable."
One could only imagine what might happen if the power and money of Hollywood were summoned against her.
See the trailer to "Slaying the Dragon Reloaded" at sfg.ly/gPEZEd.