by Kevin Jeong

On the steps of the Library of Congress May 7 from left to right: USC Intellectual Property and Technology Law Clinic / Gould School of Law Team Jack Lerner, Ashlee Lin, Chris Perez and Michael Donaldson of Donaldson and Callif.

May 6th & 7th, 2009 — Chicago-based Kartemquin films, along with a coalition of five major independent documentary filmmaking organizations and six prominent documentary filmmakers traveled to Washington D.C. in order to make a case at the tri-annual Digital Millennium Copyright Act exemption hearings. The filmmakers, accompanied by an experienced legal team led by lawyer Michael Donaldson of Donaldson & Callif and Jack Lerner, Intellectual Property and Law Professor at the University of Southern California, sought to reinforce and extend the position of Fair Use rights among documentary filmmakers, production teachers and students.

The doctrine of Fair Use is a part of United States copyright law that allows for the limited use of copyrighted material without requiring permissions from the rights holders. However, for documentary filmmakers those same rights have recently come under fire in that the acquisition of media from such sources as DVDs or CDs containing Digital Rights Management (DRM) or otherwise encrypted information is in direct violation of DMCA regulation.

Recently, it seems that many have taken DRMs as an affront to their own rights and have fired back. An entire subculture has developed, finding ways to circumvent digitally encrypted information even with looming threats of prosecution from groups such as the MPAA. However, for documentary filmmakers, that is simply not the case. Jack Lerner explains, “Filmmaker’s have a pretty good idea of what’s fair use, they’re highly educated compared to other communities of artists because of the Documentary Filmmakers’ Statement of Best Practices in Fair Use.” A 2005 doctrine outlining four common situations documentary filmmakers encounter in which the applicability of fair use can be asserted.

Lerner continues, “The problem is that these locks still exist on DVDs with a separate set of penalties quite apart from any type of copyright infringement penalties. It doesn’t matter what you do with it, if you break those locks, there are criminal penalties and there are civil penalties.” This is the conundrum faced by documentary filmmakers. Although it is within their Fair Use rights to use certain media, it is against the law for them to access that same media because of now commonplace encryption.

Often your clients confuse three different and distinct concepts – parody, satire, and jokes. Here is a simple way to clarify this for your clients. A parody is an imitation a work that comments directly on the work and therefore is allowed to take quite a bit from the work that is the subject of the comment. A satire comments on some broad aspect of society. Often, it is evaluated liberally under the fair use doctrine. Neither one has to do with humor. A joke is all about getting a laugh and gets no special break under copyright law

Excerpt

Let’s start with the jokes because most people aren’t too sure what a joke is, and I haven’t been able to find a case which defines it. But dictionaries will help us here. A joke is something that is said or done to evoke laughter or amusement. It can be a one-liner or an amusing story with a long-awaited punch line. A parody or satire does not have to be funny. The difference between a parody or satire on the one hand and jokes on the other is crucial, since jokes are not generally copyrightable whereas parodies and satires are.

Most people don’t want to be laughed at. But they can’t do much about it. The question one should ask is this: Was this an invasion of one of the personal rights of privacy, slander or false light? The reason that none of these rights are invaded is because no one is misled into thinking that the comic is making a statement of act. The comic doesn’t slander someone or put them in a false light if everyone who hears the joke understands that it is a joke rather than a statement of fact.

Satire is often thought of as a sub-sect of humor, but actually does not necessarily have anything to do with humor. A satire mocks social conventions. When courts are presented with a satire case, they don’t say “this is a satire, so we will give it extra latitude.” Rather, they painstakingly set out the manner in which the new work comments on some social condition and use that as a significant factor in their analysis. It is almost as though satires are a favored subset of fair use.

The most recent satire case involved the artist Jeff Koons. He was paid $1.6 million to create a series of paintings entitled the “Easyfun-Ethereal.” Koons scanned a photo by Andrea Blanch, titled “Silk Sandals by Gucci,” which was, as the title suggests, a photo of a pair of woman’s feet wearing Gucci sandals. Blanch had shot the photo for a Gucci ad. Koons incorporated part of the photo into his own artwork, which depicted four pairs of women’s feet and lower legs dangling over images of various dessert dishes in order to comment on the ways in which our most basic desires are depicted in popular images.

Blanch, recognized her photo. She was not happy. She sued.

She lost.

The court explained the satire in detail by describing the social comment being made, rather than sticking the satire label on the painting. In fact, the court doesn’t mention the word. The court focused on the first fair use factor (the purpose and character of use), and concluded that Koons used Blanch’s photograph in a transformative manner which weighed in favor of Koons’ appropriation because the use of the photo was to demonstrate how advertising whetted our various appetites, not to sell shoes for Gucci. This commentary on society is at the very heart of the definition of satire.

A parody has general latitude under copyright law to take from another work because a parody must comment on the work that is being parodied, so people must recognize the underlying work in order to recognize what the parody is commenting on.

The clearest definition of a parody is the following:
1.    A new, copyrightable work,
2.    Based on a previously copyrighted work,
3.    To such an extent that the previous work is clearly recognizable,
4.    But not taking more from the copyrighted work than is necessary,
5.    That criticizes or comments on, at least in part, the subject matter or style of the previous work, and
6.    Is not likely to hurt the value of the previous work.

Humor is absolutely not a requirement.

Once your client understands parody, you can deliver the good news: A true parody does not have to be cleared. The courts are clear on that.

The Supreme Court had not issued a controlling decision on parody until the 2 Live Crew case is 1994. The court held that the song “Hairy Woman” that 2 Live Crew wrote, recorded, and released was a parody of “Pretty Woman.”

After starting off with a full verse of identical lyrics to “Pretty Woman,” 2 Live Crew went on to sing:
Big hairy woman, you need to shave that stuff
Big hairy woman, you know I bet its tough

The 2 Live Crew won their case on the parody issue.

To underscore how humor is never a part of the definition of parody, consider the case of “The Wind Done Gone,” a small and powerful novel about the slaves who populated Tara, the cotton plantation in Margaret Mitchell’s “Gone With the Wind.” The Mitchell estate sued – and won an injunction at the trial court level – on the theory that this book was an unauthorized sequel. However, the estate lost on appeal and “The Wind Done Gone” was allowed to be published.

The book clearly makes commentary on the subject matter of “Gone With the Wind.” It takes characters right out of “Gone With the Wind” and tells their rich stories. So the fifth factor – the key factor – is very much in favor of “The Wind Done Gone.”

Just in case they don’t grasp this important concept, it may be simpler just to give your client some examples of what is not a parody:

•    A copyrighted song presented in a funny way. A torch song sung by someone in drag or by a drunk character slurring through a song is not a parody.
•    Changing a song slightly to fit your purposes. Changing “Michelle” to “Miguel” to make it appropriate to a character’s name is not parody.
•    An impersonator sings a song (without changing it) in a style of someone other than the person who made it a hit. Dana Carvey imitating President Bush singing “The Party’s Over” is not a parody.

So when clients come in to see you with the thought that they can perform a song because it is a parody, ask them about the commentary and make your own evaluation. After you have received their uneducated explanation, you can let them know all about the above or just give them this article to read. Most clients who get into trouble in this area, simply don’t understand the distinctions among a parody, a satire, and a joke.

by Tamsin Rawady and Alex Buono

Filmmaking is a constant struggle between creative vision and budgetary restraint. In the production of our documentary, Bigger Stronger Faster*, no issue better demonstrated this tug-of-war than our use of archival footage. As writers/producers, we quickly learned about an important tool called the Fair Use Doctrine, which could help us balance the conflict between our goal of being legally and fiscally responsible, and telling the most honest and accurate version of our story.

The first problem we encountered is that it seemed like Fair Use was sort of an urban legend: Does it really exist? Can you really use archival clips without licensing them? And does anyone understand how this all works? We spoke with many producers, who seemed to fall into two camps: those who never evoke the Fair Use Doctrine because they heard it is so complicated to wage your legal argument, and those who cavalierly claim “Fair Use!” for every clip in their film and then cross their fingers. Three years later, we managed to finish, sell and distribute a film containing over 800 archival clips with hundreds of cases of the Fair Use Doctrine being practiced, and we decided to share some of the practical lessons we learned about Fair Use with other filmmakers.

Bigger Stronger Faster is the story of our director, Chris Bell, and his two brothers who grew up during the ’80s under the influence of muscular action stars like Arnold Schwarzenegger, Sylvester Stallone and Hulk Hogan. The American Way was being projected to these young, impressionable boys as a win-at-all-cost mentality, and we were interested in how that affected their decision to use performance-enhancing drugs later in life. To truly examine the impact popular culture had on these three brothers, we knew we had to use archival footage from the time period. We also knew we could never effectively tell this story without actually showing clips from professional sports. As we broke down our wish list of archival footage, it was full of movie and television clips from some of the most high-profile and notoriously litigious corporations in the world, including the International Olympic Committee, Major League Baseball, the National Football League and World Wrestling Entertainment—all of whom did not want their brand associated with a movie about performance-enhancing drugs. When they all denied us the right to license footage from them, it was easy to become discouraged.

Thankfully, we had a dedicated archival team (Andy Zare, Pamela Aguilar and Susan Ricketts), and a legal team that specializes in the application of the Fair Use Doctrine. You must find an attorney familiar with Fair Use. In our case, attorneys Michael Donaldson and Lisa Callif (Donaldson & Callif) soon became two of the most valuable members of our team; additional critical advice came from veteran archive producers Prue Arndt, Deborah Ricketts and Barbara Gregson. What follows is a list of steps and tips that we learned along the way.

The Rough Cut—Organizing the Footage

The first decision we had to make was whether to include clips in our rough cut that we knew we could never license. One philosophy is to only use timecoded clips from legit archive houses so that when it’s time to picture-lock and finish your film, the process is relatively straightforward. The other philosophy (which we adopted) is to explore any and every possible editorial option—clearances be damned! We decided it was more important to edit the film without creative restrictions, and thus we ended up digitizing footage from traditional archive sources whenever possible, but also from every other imaginable source: DVDs, YouTube videos, TiVo’d news programs, old VHS tapes, etc. But it was far from reckless abandon. Our archival team implemented an organization system to timecode and track every piece of footage through a Filemaker Pro database. Since this approach resulted in hundreds of hours of archival footage, we had a team of interns constantly logging new footage into our database, and an apprentice editor working the night shift digitizing footage.

The Legal Review

Once we had a relatively coherent rough cut, we output a timecoded DVD with a corresponding log of the archival clips in the cut, identifying the copyright holder, current licensing status, and whether we anticipated making a Fair Use argument for the clip. This DVD/log went to Donaldson & Callif for review. They examined the context of every archive clip we had marked as Fair Use, and gave us their legal opinion on the strength of each case. In all honesty, we were anticipating an “Us-vs-Them” kind of relationship where the lawyers were going to try to stop us from exerting our creativity with an overly conservative approach to the law. On the contrary, the goal of our attorneys was to exercise the Fair Use Doctrine as often as possible—not just as a Plan B if the clip license is denied. If our use of a clip falls within the definition of Fair Use, we would use the doctrine—and quite often not even approach the copyright holder at all.

Fair Use or Not Fair Use?

This is not to say that our attorneys let us off easy. They denied Fair Use for as many archive clips as they approved. They were very strict about the necessity for the clip to be contextualized, rather than just an entertaining cutaway. For example, in one scene we explore the use of amphetamines by Air Force pilots. As a fun introduction, we tried to use that memorable clip from Top Gun: “I feel the need for speed!” Funny? Yes. Fair Use? No. Our attorneys told us that if we wanted to use the clip here, we would have to obtain the license from the movie studio as well as the talent releases from the actors in the scene (including Tom Cruise).

Making the Case—and the Story—Stronger

Donaldson & Callif provided not just a list of approvals and denials, but also notes about how we could alter the rough cut in order to make Fair Use arguments. Does that sound like creative notes coming from your lawyer? Well, we were surprised to learn that by accepting their advice and better contextualizing a clip, we not only waged a better Fair Use argument, but we quite often made a clearer story point. For example, there was a clip of Hulk Hogan delivering his wonderfully over-the-top motto: “Train, say your prayers and eat your vitamins…Be a real American!” We thought the clip was hilarious, but on the advice of our attorneys, we added voiceover before the clip explaining how much that motto meant to Bell and his brothers as children. The result was a stronger defense for Fair Use as well as a much more meaningful scene.

When to Hire an Attorney

Another important point to understand about our relationship with our Fair Use attorneys is that we brought them into the process very early—six months before we finished editing. It was essential to get their advice while we still had time to re-cut scenes—even re-think scenes, if need be. It would have been an enormous mistake to limit the value of their input by waiting until picture lock before involving them.

The Downside of Fair Use

One of the benefits of licensing a clip, in lieu of applying Fair Use, is that you also get access to a high-quality master. With Fair Use, you are on your own to find the highest-quality copy of the footage, which can take weeks and requires a great deal of manpower. We ended up “mastering” from sources as degraded as old VHS recordings of TV shows that we bought second-hand and from low-res online downloads for which no master source even existed. Post-production became more difficult as we had to convert and up-res all of these different formats to high-def. In a few cases, we actually decided to pay for the license of clips for which we knew we could employ Fair Use, simply to get the high-quality master.

E&O Insurance

E&O Insurance is another important factor when considering Fair Use, as there are currently only a few insurance providers that will cover it, and it’s safe to assume that they will need a little extra explanation before they dive in—and may even ask you to alter your edit before they will agree to insure your film. Our Fair Use attorneys were vital in these steps as well.

The Distribution Stage

When it comes time to sell your film, bear in mind that many distributors are still clueless about the application of Fair Use. We would recommend allowing money in your budget for your attorney to talk through your archive clearances with your distributor’s legal department. The Fair Use Doctrine is also a little more difficult to apply when marketing the film. This makes it tricky when your distributor is producing the trailer, for example. You’ll need to approve the trailer to make sure they are not using any Fair Use footage out of context, lest it lead to a lawsuit from the copyright holder and affect the release of your film. Remember, as the independent producer, you are responsible for claims made against your film, not your distributor.

When Copyright Holders Attack

After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims.

Know Your Rights

On a final note, Fair Use is still an area of law that only a limited number of professionals have a solid handle on. The legal departments of the major studios and television networks are prone to roll over and settle with copyright holders, rather than defend their Fair Use cases. This makes it especially difficult for the independent producer, but if filmmakers were more confident in their knowledge of the Fair Use Doctrine, they could tell their stories as truly intended. In truth, it can be very stressful to challenge a copyright holder’s right to their own footage, but it can be done, and your best resources are a good attorney—and a strong antacid.

Tamsin Rawady and Alex Buono are narrative and documentary writer/producers based in Venice, CA. Their production company is Third Person.

Well-known fair use specialist Michael Donaldson’s Beverly Hills law firm will now be known as Donaldson & Callif after Lisa Callif becomes a named partner. Callif has been working at the firm since 2005, in what was known as Donaldson & hart, where she represents independent filmmakers.

How do you get ahead on the job when the labor market is crumbling? Michael Donaldson, an entertainment lawyer and author of Fearless Negotiating (McGraw-Hill; $16.95), says workers often have more power than they think they do, even in tough times. Personal Finance Editor Lauren Young asked Donaldson for negotiating tips.

What kind of leverage do employees have at a time when the job market is looking for grim?
It’s actually a wonderful opportunity, because most people in the same situation are badly shaken and have the same assumption that it’s a bad time to be asking for things. Take starting salary: People often reduce what they are asking for. It’s a terrible thing to do. That’s what everyone else is doing. You need to say: “I’m worth this. Here’s what I cost.” That’s how you distinguish yourself. In my own practice, we just hired a new attorney. A couple people who applied had seriously undervalued themselves. You can’t help wonder: “Do I wan this person negotiating for my clients?” We hired the one who was the most expensive. The resumes all look kind of alike, but employers want the best.

What about asking for a raise?
About a year ago, a client’s son came to me because he thought he should be making a lot more than he was-he was an important part of a support team for a Xerox sales group. We had a couple coaching sessions, and when he approached his boss, he pushed hard for a raise. The company eventually showed him that he was at the top of his pay bracket. I told him: “If you like working for Xerox, stay right there, but we have to change your bracket.” During the course of the year, he was able to get himself relabeled as a salesman. He learned a lot about what he was being paid and what he was worth. He’s now making twice what he was making. His duties frankly have not changed that much, but by relabeling himself he got a heck of a lot more money.

Many workers are being asked to do more with less. How do you broker a fair deal when a salary bump isn’t an option?
This is the great American myth. When companies say they are reducing jobs, they aren’t cutting positions-they are just doubling up work on some poor person. Employers are pulling this off because workers are afraid to assert themselves. My advice is to talk a walk and think about the implications of a heavier workload. What’s necessary for you to do this job? Is this something you can farm out? Then go to your boss, and say, “I’ll take this on, but only for an interim period. Otherwise, the work won’t get done well.” Be precise-say you’ll work on overdrive for three or six months. It’s a lot better than deciding you’ll revisit the issue in six months when you are exhausted and have had a cold 18 times, so you are worn down.

Finally, what’s your advice for people negotiating severance agreements?
Most people negotiating severance feel very unempowered. Ask yourself: “What value will I have to this company even when I leave?” You may end up in a position where you still have a strategic relationship with your employer. It helps to identify an ongoing project that the two parties can work on together in the future.

Inspired partly by “This Film Is Not Yet Rated,” a veteran showbiz insurer has started offering coverage for documakers, aimed at allowing free use of film clips.

Initiative by Media/Professional Insurance is designed to explicitly allow documentarians to retain coverage if they rely on the “fair use” doctrine, which holds that copyright material may be used without compensation if it’s for purposes of criticism, comment, news reporting, teaching, scholarship or research.

Goal is to enable docus to contain clips without forcing filmmakers to pay hefty licensing or release fees. In the case of the “This Film Is Not Yet Rated,” filmmaker Kirby Dick included 134 clips without paying fees, which would have probably run in the $10,000-$15,000 rage for each clip. The clips in “Rated” were employed to portray the inconsistencies within the MPAA ratings system, often running side by side to depict violent scenes that were deemed acceptable and sexual scenes that were not. Pic, released by IFC, grossed $306,000 domestically.

“Documentary films are an important source of education, commentary and criticism,” said Leib Dodell, prexy of Kansas City based Media/Professional Insurance. “Rigidly requiring licensees or releases in all cases does not give filmmakers the flexibility to take advantage of ‘fair use’ in appropriate situations. This initiative makes ‘fair use’ in appropriate situations. This initiative makes ‘fair use’ work in the real world of independent filmmakers.”

Media/Professional, the nation’s largest provider of media liability insurance, developed the new coverage in partnership with the Stanford Law School Fair Use Project and several local intellectual property attorneys including Michael Donaldson, general counsel for Film Independent and the Intl. Documentary Assn. The additional coverage would probably range from several hundred to several thousand dollars, execs said Thursday at a media briefing.

Donaldson said at the event that there are two key questions for filmmakers wanting to employ “fair use”: Is the material needed to tell the story, and did the filmmaker use only what was needed. He also admitted he was somewhat surprised that no studio’s threatened to sue over Dick’s employing “fair use” for the clips on “Not Yet Rated.”

I fully expected one of those chest-beating letters from an attorney for a studio, but we never got one,” Donaldson said. “I was also quite confident that we would not be sued because Kirby took a very conservative approach on how the clips were used.”

Heightened profile for docs

For his part, Dick said he’s received many inquires from fellow filmmakers about his use of the clips and noted that the overall profile of docus has broadened significantly. “Documentary filmmakers are moving into the cultural debate now that the news media isn’t fulfilling its role,” he added.

IFC general manger Evan Shapiro said the initiative is particularly welcome since it comes at a time when getting clearances for use of copyrighted material has become much more difficult amid the explosion of digital platforms. “Trying to understand who’s the content owner is increasingly muddy.” He added.

Part of the initiative includes the availability of half a dozen Stanford Law School attorneys on a pro bono basis to filmmakers who comply with the Center for Social Media’s guidelines, published in 2005.

“This initiative will let filmmakers stand up for their ‘fair use’ rights where they were unable to do so before,” said Anthony Falzone, exec director of Stanford’s Fair Use Project. “Copyright holders will no longer be able to rely on fear and intimidation. Everyone will be on a level playing field.”

IDA prexy Diane Estelle Vicardi made an announcement about the Media/Professional policy Wednesday night at a reception for documentarians and the Academy of Motion Picture Arts & Sciences, leading to a standing ovation by attendees.

In a move designed to aid documentary filmmakers in making fair use of copyright material, Media/Professional Insurance has launched an initiate that will allow filmmakers who draw on existing video or film clips to insure their work.

In order to indemnify filmmakers who take advantage of their fair use doctrine, Kansas City, MO, - based Media/Professional is teaming with the Stanford Law School Fair Use Project, headed by executive director Anthony Falzone, Attorneys at the project will vet works-in-progress to advise filmmakers whether they are working within fair use guidelines. If a filmmaker later faces charges of copyright infringement, the Fair Use Project will provide counsel on a pro bono basis.

Michael Donaldson, a Los Angeles-based intellectual property attorney who first proposed the initiative to Media/Professional, also will work with the project. And in cases where the project is unable to offer pro bono counsel, Donaldson and other attorneys will be available to handle cases at favorable rates.

The initiative will be guided by an advisory board that includes docu filmmakers Kirby Dick, Davis Guggenheim, Arthur Dong and Haskell Wexler, professors Peter Jaszi and Lawrence Lessing, and Donaldson and Flazone.

Until now, insurers and film distributors have required docu producers to obtain permission, often at the cost of an expensive license, to use copyrighted material before they will provide insurance.

According to executives at Media/Professional, the cost of the new offering will run from about $200 to about $2,000, adding 10% to the price of a typical errors and omissions policy, which can run from about $4,000 up to as much as $25,000 for a riskier film.

“Documentary films are an important source of education, commentary and criticism,” Media/Professional president Leib Dodell said. “Rigidly requiring licensees or release in all cases does not give filmmakers the flexibility to take advantage of fair use in appropriate situations. This initiative makes fair use work in the real world of independent filmmakers.”

Dodell and execs from the company visited Los Angeles this week to tell filmmakers of the new product, which diane estelle Vicari, president of the International Documentary Assn, announced at the IDA’s Oscar nominees reception Wednesday night at the Academy of Motion Picture Arts and Sciences’ Samuel Goldwyn Theater, where the news was greeted with a standing ovation. “This is a breakthrough for independent voices in film,” Vicari said.

The fair use doctrine has received growing attention within the docu filmmaking community over the past few years. As media companies that control video and film clips have steadily raised their prices for licensing clips, documentarians have fought back, arguing that the same fair use principles that apply to written works also cover non-fiction filmmaking.

In November 2004, American University’s Center for Social Media developed a documentary filmmakers statement of “Best Practices in Fair Use,” whose guidelines the project will use.

Observing the copyright holders were increasingly demanding that filmmakers pay to license clips that the filmmakers had a constitutional right to use under existing copyright law, the statement set out o restate situations in which fair use is valid (HR 11/11/05).

“Fair use is the only tool we have to push back against aggressive users of copyright law,” Falzone said.

Dick, director of “This Film Is Not Yet Rated,” and Evan Shapiro, general manger of that documentary’s producer, the Independent Film Channel, met with Media Professional execs Thursday.

Kirby observed that licensing the 140 clips used in his film would have been prohibitively expensive. But working closely with Donaldson, he stayed within fair use guidelines, and no copyright holders have come forth to challenge the film. Free use, he said, “created the possibility of making this film.”

Kirby added that more and more filmmakers are exploring current events like the Iraq War, partly because “the news divisions are cutting back on their investment in journalism. The press has historically been given more fair use latitude,” he noted, adding that now “documentary filmmakers are stepping in.”

While the courts have laid down rules governing fair use, Donaldson said the basic principles often can be reduced to two questions that he raises with filmmakers. “If you’re making a documentary, did you really need this clip to tell your story? Did you use only what you needed to make the point?”

He said that with Media/Professional’s new initiative, filmmakers will be “free of the yoke of paying for things that they have a constitutional right to use.”

The film producer Alicia Sams viewed “Wanderlust,” a documentary about American road movies, as a way of introducing a new generation to Bonnie and Clyde, Thelma and Louise, and other giants for the genre. Films like “Five Easy Piece,” “Easy Rider” and “The Grapes of Wrath,” she was convinced, offered a window into the American character.

The 90-minute documentary, to be broadcast Monday night on the Independent Film Channel, was also a window into the frustrations of making a clip-intensive film dependent on copyright clearance, which has become hugely expensive in the past decade. Initial quotations for the necessary sequences came to more than $450,000, which would have raised by half the cost of the IFC film, direct by the Oscar-nominated team of Shari Springer Berman and Robert Pulcini (”American Splendor”).

“Paramount wanted $20,000 for 119 seconds of “Paper Moon,” Ms. Sams said. “The studios are so afraid of exploitation that they set boundaries no one will cross. Even after the prices were cut, we were $150,000 in the hole.”

Unwilling to pay those fees, IFC’s general manager, Evan Shapiro, helped Ms. Sams pursue another, more aggressive, track, which may point the way for documentarians who want to tap movie iconography without paying studio prices, Its strategy involved some negotiating hardball, backed up by a willingness to fall back on the tricky legal doctrine known as fair use.

Mr. Shapiro called in a Los Angeles entertainment lawyer, Michael C. Donaldson, who drilled him on copyright law. Under the 165-year-old fair-use doctrine, Mr. Shapiro was told, filmmakers, news gatherers, critics and educators can access material at no cost if they add something to it (like a voice-over), don’t undermine its value or use more than needed to make a point. Free speech trumps private property when a project is in the public interest, a term broadly defined.

“Fair use is the lubricant that allows creativity and copyright law to coexist,” said Mr. Donaldson, a former president of the International Documentary Association.

Though many public-affairs programmers employ the fair-use concept, cable outlets-the major producers and distributors of documentaries – have been reluctant to do so, as budgets for documentaries are low and litigation expensive. And it’s hard to get insurance for “errors and omissions,” the media version of malpractice, unless everything is licensed.

Mr. Shapiro had vowed never to embark on another clip-heavy film after Xan Cassavete’s “Z Channel: A Magnificent Obsession,” a costly 2004 profile of a cable network and used scenes from movies like “Salvador” and “400 Blows.” Rights had to be purchases 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 theatres later this year. “That was made, from the start, under the fair use doctrine, as all of our documentaries will be from now on.”

Mr. Donaldson began contacting the studios at the Berlin film festival in February, initiating talks that dragged on for months. Accept $1,000 a title, he said, or IFC will move ahead anyway. Though Paramount held firm, 13 of the 18 copyright holders accepted the offer, including Sony Pictures Entertainment, MGM, Universal Studios, Miramax Films and Warner Brothers Entertainment, whose price was cut from $149,850 to $8,000. In the end the clips cost IFC les than $50,000. The holdouts advised IFC to rely on the fair-use argument, which, after viewing the film, they said they might legally challenge. (Mr. Shapiro is ramping up his insurance and putting anyway money in case that happens.)

Copyright law is not being used to stonewall filmmakers but to protect corporate assets, argues a licensing executive from one of those studios, who was granted anonymity because of his company’s press relations policy.

Because of the proliferation of clip-generated programming, movie clips are in great demand. The executive said his department had no problem when broadcasters use unlicensed sequences to mark the death of an actor, and it has a lower rate fro “nonprofits.” But “Wanderlust” is a commercial product that will, undoubtedly, have a shelf life.

“Fair use is a defense sometimes used, after the fact, to justify the appropriation of footage without asking,” the executive said. “The producers could have used shorter clips, or even still photographs. If someone can’t afford a Mercedes, that doesn’t mean he can’t drive.”

One copyright holder, James Velaise, the president of Pretty Pictures, ultimately agreed to license a clip from Francoise Truffaut’s “Breathless” for $1,000, a fraction of his usual asking price. Still, he said he took issue with IFC’s take-it-or leave-it approach and the introduction of fair use. Using the argument to save “a few thousand bucks” is “thoroughly dishonest,” he wrote in e-mail messages sent to Mr. Donaldson’s firm. It’s a tantamount, he said, to stealing. “I was simply blackmailed,” Mr. Velaise said from his Paris office. “And why pay anything if that lawyer is so sure of the law?”

No such confusion with Kirby Dick’s “This Film Is Not Yet Rated.” While “Wanderlust” employed a hybrid approach, fair use was the only option because of the volume of cli[s and the provocative subject matter. Licensing 135 excerpts at an average of $10,000 each would have doubled his budget, Mr. Dick said. And projects that ruffle the feathers of the media establishment, he suggested, face insurmountable challenges. Some licensing agreements prohibit negative portrayal of copyright holders, he observed. And others preclude the use of the clip in films not rated NC-17, which no on 17 or under can attend. He would be sued from breach of contract on both counts, he said, because his documentary takes aim at the studios and carries the NC-17 tag.

The enemy is not the copyright holders but ignorance of available option, other filmmaker san their advocates maintain. To address the problem, IFC is formulation its own fair-use guide, and last November, Pat Aufderheide and Peter Jaszi, communications professors at American University, coordinated a statement of fair-use practices drawn up by a coalition of filmmaking groups. Ms. Aufderheide has since met with the History Channel, Court TV and the Corporation for Public Broadcasting, among others, teaching them the value of fair use, economic as well as creative.

“IFC is positioning themselves as hard-charging rebels,” she said. “But by lowering their clearance costs, they’re actually canny businessmen.”

Because fair-use boundaries are seldom clear, lawyers are needed to interpret each case, said Prof. Lawrence Lessig of Stanford Law School. Earlier this month he announced the formation of a co-op of lawyers based at Stanford that will donate services to fair-use filmmakers.

“Shapiro is fighting the good fight,” Professor Lessig said. “But the danger of drawing a line in the sand is that others will try to erase it.”