6 Word Memoir

Matt Lauterbach (Author)

http://www.smithmag.net/books/

Studied psych,
Went psycho,
Searching psyche.

Can Kartemquin Clear Up the Clearance Culture Confusion???

There is a thin, 8 page booklet that Gordon Quinn, co-founder and executive director of Kartemquin Films, carries in his bag wherever he goes. He has a couple hundred copies, and he loves to just hand them to people. “If I have anything to do with it, it gets into the hands of virtually anyone who’s making movies.”

The booklet, called Documentary Filmmakers’ Statement of Best Practices in Fair Use, had its humble origin in an early morning walk in Amsterdam, when Gordon and Pat Aufderheide from the Center for Social Media started envisioning a better world for nonfiction artists of the silver screen. “It was like 3 or 4 years ago,” remembers Gordon. “One of the problems that we had at the time is that we virtually couldn't claim fair use for anything. I mean, you had to clear everything. That's what lawyers were telling you, that's what PBS was saying.”

A clearance culture had been building up since the 1990s , when big companies like Sony, Fox, and Viacom started to get pushy. In reaction particularly to the growth of the Internet, they began making threats. “They were telling people ‘You've got to take this down, you've got to do this.’" Lawyers began to tell filmmakers they had to get rights clearances for everything. Worried about lawsuits, broadcasters stopped accepting work from filmmakers who couldn’t show them all the proper licenses and releases. Insurance companies stopped granting Errors and Omissions Insurance to films that used unlicensed footage, music, or photos. And what’s worst is that the filmmakers themselves were buying into it.

“I was victim,” admits Gordon. “You know, you’ve been beat up so many times, you start to self-regulate. I mean I was as bad as anybody.”

Gordon can describe several instances while making Hoop Dreams when the Kartemquin team erred on the side of being overly-cautious. There were the snatches and snippets of band music being played during the basketball games that had to be licensed. There was the scene where Arthur’s family sings ‘Happy Birthday’ – Kartemquin had to license that song for five thousand dollars. And perhaps most frustrating of all, there was the Muzak.

“There's a scene there where William is being operated on, and his mother is in the waiting room in the hospital, and I remember saying to Steve, ‘you know, let's get the hospital to turn this music off.’” For whatever reason – lack of time, uncooperative hospital staff, who knows? – that didn’t happen. So the crew went ahead and shot the scene with William’s mother. “And it's got this Muzak in the background, elevator music, who knows what it was. Well, we had to license it. We didn't even want it in our scene. It's an irritation."

What happens in an over-licensed world where filmmakers have to pay for virtually any use of any copyrighted material? Simply put, there are a lot of films you can’t make. “All of a sudden there are films that instead of costing hundreds of thousands of dollars are going to cost you a million, two million, three million…” The insidious consequence of such expensive licensing costs is that filmmakers can no longer freely express their ideas. As Gordon points out, “We’re from this visual age. People speak in images, and people speak with music.” If filmmakers have to buy every image and every song that appears in their documentaries, then the nature of what can be said gets “seriously constrained.”

“The problem we got into with this clearance culture where everyone felt that everything had to be cleared was that it was stifling expression, it was stifling criticism, it was stifling the kind of robust dialogue that is essential for a democracy.”

---

That’s why, four years ago at the IDFA Festival in Amsterdam, Gordon Quinn and Pat Aufderheide were having an animated conversation about how to define fair use. They talked about grass-roots organizing; about getting together a bunch of people who were being affected and constrained by the clearance culture; and about producing a clear statement of documentary filmmakers’ fair use rights.

Over the next year, nearly a hundred documentary filmmakers came together in cities across the United States. Peter Jaszi, Pat’s partner at the Washington College of Law, American University, joined the effort, and Kartemquin Films hosted two productive sessions of dialogue. When a tentative statement had been written, it was reviewed and vetted by lawyers who were experts in the field of copyright law. Eventually, what resulted was the Documentary Filmmakers’ Statement of Best Practices in Fair Use. “And it fundamentally changed things.”

To clear up the confusion surrounding fair use, the statement outlines four classes of situations in which documentary filmmakers may legitimately claim fair use. A good way to remember these categories is to think of them as the four “Hard C” words (phonetically speaking) – Critiquing, Quoting, Capturing, and Contextualizing.

Critiquing and Quoting are the easiest to understand. Just like a newspaper might review a new book or a journalist might quote a poet to illustrate a point, a documentary filmmaker should also be free to use text, image, or sounds to analyze and illustrate society.

Sometimes, however, copyrighted material pops up in the background of a film sequence in a real-life setting. A poster on the wall, music on the radio, or a sitcom on TV is accidentally Captured, and is incidental to the purpose of the filmmaker. In this situation, fair use “should protect documentary filmmakers from being forced to falsify reality.” No need to blot out the image or substitute a different audio track to avoid exorbitant licensing costs.

The last case is the trickiest: Contextualizing, or using copyrighted material in a historical sequence. “If we're going to talk about history,” Gordon explains, “there are certain kinds of things that we have to be able to show in their historical context. We're showing these news stories and these clips, and we're editing them together to show a point, a time in history that there was this controversy, you know. We may have three or four sources there, or six sources, we may have print and radio and television all mixed together, woven together to say, ‘This is what was happening in America at this time.’”

At $1,500 per minute, however, archival footage is one of the heaviest burdens to shoulder in a documentary filmmaker’s budget. Gordon suggests that in many cases – when the costs are excessive relative to a reasonable budget for the film; when there is no suitable substitute to illustrate the history; and as long as the copyright owner is properly identified in the credits – fair use should apply to the use of historical material. "Nobody really owns history," a lawyer once told him. “That's a great line,” admires Gordon.

---

What is so exciting for Gordon about the booklet in his shoulder-bag is that it provides a way to push back against the gatekeepers of the clearance culture – the lawyers, the broadcasters, the insurers. “If you look at old 'best practices' handbooks, like at CBS or places like that, there's stuff in there that has nothing to do with the law. The 30 Second Rule – if you use 30 seconds or less, it's okay; if you use 30 seconds or more, that's a problem. Well, there IS no such rule. It has nothing to do with the law. It has nothing to do with any court precedents. It's just something that somebody at some point made up.”

When interpreting the Copyright Act, judges really ask two questions: 1) Is there a transformative quality to the creator’s use of copyrighted material; and 2) Is the amount of copyrighted material limited to only what was necessary to make the creator’s point, and no more? If the filmmaker’s point can be made in under 30 seconds, that’s fine. But if it takes more time, that’s fine too. “If you need more, you use more. But it’s not a license to steal.”

What’s important to the definition of fair use is not how much of the material is used, but how it is used. The material has to be transformed, made into something new, and used for a purpose that is different from its original intent. When this transformative quality is evident, according to Gordon, the case law has been very supportive of fair use claims. “We don't have to go to Congress, it's not about changing the law. The law's a good law. There's nothing wrong with the law. We just have to use it.”

Of course, there will always be vulnerabilities. Even though the law is on the side of creative filmmakers, they can still be sued. Many lawyers will still advise producers to get clearances for any material that is copyrighted, reasoning that to neglect such a precaution would be dangerous and risky.

Gordon rolls his eyes.

“Look. You don't understand our business. We take risks. It's a risky business. You know, we go to risky places, we take risks all the time, and this is just another way of asserting our rights in this area.”

One of the things Gordan has learned is that the chances of a filmmaker being sued by one of those big companies – Sony, Fox, Viacom – is pretty much nil. “They will threaten you. They will tell you, ‘Do what we say, or we will sue you.’ But if you just say, ‘Drop Dead,’ they're not gonna sue you. Why aren't they going to sue you? Because they have very high-priced lawyers who at the end of the day are going to say to them, you know what, we don't want to take this to court because we'll probably lose.”

Armed with a copy of the Fair Use Statement in his hands, Gordon can now confidently challenge any broadcaster or insurance company that is reluctant to back Kartemquin’s films. “When you come in with the statement, you can say ‘A hundred people have met from all over the country. It’s been vetted. Here’s the list of lawyers that it’s been vetted by. They’re the top experts in this field. We’re not gonna take ‘No’ for an answer.’”

---

And then there’s the other side of the coin. Gordon is not solely a rights user – he is also a rights holder. Kartemquin Films, Inc. holds numerous copyright claims of its own, and Gordon certainly doesn’t want somebody to be able to just steal their films.

“Of course we are very concerned about the rights in our films. And one of the reasons we're so concerned is that our films are very intimate stories within peoples' lives. So we don't license our material to stock-footage houses, for instance. We just don’t do it. I can't have somebody who made a documentary with us all of a sudden seeing themselves in a commercial for something.”

Something like that scenario nearly happened to the title character of an early Kartemquin film called Winnie Wright, Age 11. Another film company was making a documentary about women who got illegal abortions in the late 60s and 70s. The director was looking for images of the culture of the time – political demonstrations, activists, and the like – and asked to use some footage from Winnie Wright. Gordon said “Okay,” but he wanted to see a rough cut before they went public with the film.

“So they come back to me, and they've taken an image from our film. And I'm like, ‘Well wait. The way you've cut that, the way you’ve juxtaposed that with the demonstrations, you're implying that she had an abortion! This 11 year-old girl.’ I said, ‘You can't do that.’ You see what I mean? In other words, I do have an interest in and a concern with how our work is used.”

Luckily, the other filmmakers saw his point and agreed to fix the problem. But what if they had stuck with the edit and claimed fair use? In that situation, Gordon supposes, the recourse would be in saying that they were doing material harm to Winnie Wright. “I have a responsibility, a moral obligation to make sure that the material is not used in way that is counter to what I intended, or what she allowed me to do by coming into her life.”

Gordon acknowledges that there is a bit of a contradiction between being a rights holder and a rights user. “I understand there's some complicated questions there. Because of course WE use things out of context when we use images too. We do all kinds of things to make them into something new, and they're not being used in the way that they were originally intended. So I’m on both sides of the issue.”

In striking that delicate balance between a creator’s rights and responsibilities, Gordon looks to the United Nation’s Universal Declaration of Human Rights for inspiration. In Article 27, the document sets up a dialectical relationship between two entitlements:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

“It’s an absolutely brilliant statement of exactly what we're talking about,” Gordon says rapturously. “It's this document that everyone knows, and it's like ‘Oh my god. There is the thing that's at the heart of all this.’"

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For more about Copyright & Fair Use in Documentary, see the Center for Social Media website at http://www.centerforsocialmedia.org/resources/fair_use/ .

The Weather Man

Have you ever heard a piece of music that tugs a bit at your tear ducts? Rent the DVD to "The Weather Man" starring Nicolas Cage, and you'll hear one such piece. It's called Pling Plong, composed by Hans Zimmer.

Pling Plong is a simple, short, softly percussive work written for xylophone, hand chimes, toy piano, and synthesizer. On its own and out of context, the song sounds pretty, but it is pretty much just a pleasant lullaby. The emotional impact it has on me is due far more to the powerful film that the music accompanies.

"The Weather Man" is one of the saddest movies I have seen in a very long time -- really, not since Cage's other wrenching portrayal of a tragically flawed man, as an alcoholic in the devastating "Leaving Las Vegas" (not to be mistaken for the incomparably lighter comedy "Honeymoon in Las Vegas"). This time, Cage's character is not trying to drink himself into oblivion; rather, David Spritz is trying very hard to succeed in life and to earn the approval of his family. But for some reason, the harder he tries, the harder he falls.

Spritz is a weatherman in Chicago, and though television audiences see only the smiling, handsome, annoyingly chipper Spritz, we see the man both on and off the green-screen. In the studio, he is relatively confident and sure of himself. But then we see him wandering the jammed streets of the Windy City, picking up an overweight, unhappy daughter, arguing with his ex-wife Noreen over how to handle their son's return from rehab, taking a stern, critical father to the hospital to discover that he is dying of lymphoma, and getting continually hit with fast food from drivers passing by. In one of David's frustrated streams of consciousness, we hear him trying to understand..."why?":

...the whole think is, who gets hit with a fucking pie, anway?
Did anyone ever throw a pie at Thomas Jefferson?
Or Buzz Aldrin? I doubt it.
But this is like the ninth time I got...

Then, a realization:

Clowns get hit with pies.

In some ways, David is like a clown. Whatever he does goes comically wrong. During trust-building exercises at a relationship counseling session, David has what is probably his last chance at restoring his marriage. When told to "name something you did that affected your partner and that you're not proud of," he blurts out:

I had this thing with porno on the computer, sort of.
I got a little preoccupied...

The therapist pauses, then politely reveals:

Actually, I want you to write it down, not say it.

Oops. The audience laughs. For men, it is a laugh of relief -- "I'm glad I wasn't the joker who said that."

Then there is the moment when David tries to restore some of the lost playfulness he had with Noreen by throwing a snowball at her. But (you guessed it) she turns into the toss and is hit in the eye by the ice. Instant guffaw.

More often, however, David's blunders have far worse consequences. For the same trust-building exercise mentioned before, David and Noreen trade notes, which neither of them are supposed to read -- EVER. Giving into temptation (who wouldn't?), David reads Noreen's note the first chance he gets. It reveals that she thinks his attempt to write a science fiction novel was "stupid and sucked...and a waste of time." A hurtful thing to say, especially to someone whose own father was a Pulitzer-prize winning writer, a man whose shoes David could never hope to fill.

The tragic blunder comes afterwards, during dinner with Noreen. Too preoccupied with the note he was never supposed to read, he is completely oblivious to his ex-wife's hopeful look in her eyes. She is, perhaps, ready to give their marriage a second chance. But David's leg is bouncing up and down, he looks distracted and resentful, and when David blurts out his resentment to Noreen, we are not surprised.

Noreen is, however:

You're an asshole. God
You are a champion asshole.
You're a real blue-ribbon fuck!

David's explanation for his behavior is honest, and understandable:

I just want to know everything, so I can make it work. That's why I...
I want to try again.

But it is lost. Noreen can't listen:

I'm not going back. You fucked it up.

The amazing thing about Nicolas Cage's performance is that we desperately want him to do something right for a change. It is so clear that he loves his family, but as he smiles at his overweight, unhappy daughter, we notice an endearing mix of care and cluelessness. He is well-intentioned, he is loving, it's just that he is, well... a clown.

But we don't want him to fuck up. We don't want to laugh at him. We want the same thing for him that he wants for himself, and that his father wants for him, and that his children so clearly want from him: we want for David to be able to finally knuckle down and get it together.

There are two powerful motifs that the filmmakers use to key the audience into David Spritz 's existential struggle. First, there is an almost subliminal omnipresence of clocks, accompanied by a score that plings and plongs rhythmically and repetitively. Framed in the backgrounds of shot after establishing shot, there are clocks with second-hands ticking interminably into the future. Time is running out for David's father, who is dying of lymphoma; and time is running out for David to get his act together and make his father proud of him before he dies. Played by Michael Caine, Robert Spritzel (David dropped the 'e-l' from his own last name to make his screen name sound 'refreshing') is an involved, concerned father who is dismayed by David's haplessness. David is Robert's only failure in life, and though Caine restrains his performance, he succeeds in conveying the defeated resignation that Robert must feel as he watches his son's family life unravel.

If the unraveling of time were the only thread in this story--if ticking clocks were the only motif--then it would be an oppressive downer. Yet, a second image in film begins to counter the unrelenting march of time, and to offer hope for continual progress and improvement in David's life. The image is also a circular one, but of a decidedly different nature: that of a target with a bull's eye.

One of David's early attempts to bond with his daughter Shelly is to take her to an archery range and enroll her in lessons there. After she quickly loses interest, however, it is David who begins to take up the hobby. He uses the bow, quiver and arrows he had bought for Shelly and enrolls in classes himself. Archery proves to be the only thing in his life where the rules are clear, results are predictable, and accuracy is possible. And for too long in the film, it is the only area in which we witness David improving. But he does improve, steadily and perceptibly; his aim becomes more and more sure, his release swifter and more confident, and his marksmanship approaching perfection.

And then, subtly at first, almost imperceptibly, David begins to bring his life into a sort of alignment as well. He defends his son from a pedophilic drug counselor; he makes amends with his father before his funeral; and he is offered a job with the national morning news show, "Hello America!" There are moments when he comes precariously close to his breaking point, and when we fear that he will ruin these precious chances as well. Ultimately, though, he succeeds in tilting the balance back towards stability, towards an acceptance of his life. It is a bittersweet acceptance, one that involves a resignation to who he is, what he is capable of and what he is not. In an inner monologue that touched too close to home for me, David reflects:

I remember once...
...imagining what my life would be like, what I'd be like.
I pictured having all these qualities.
Strong, positive qualities...
...that people could pick up from across a room.
But as time passed...
...few ever became any qualities I actually had.
And all the possibilities I faced, and the sorts of people I could be...
...all of them got reduced every year to fewer and fewer...
...until finally they got reduced to one...
...to who I am.
And that's who I am...
...the weatherman.

This is why the song Pling Plong from "The Weather Man" soundtrack nearly brings tears to my eyes when I listen. It is a song of time passing, of the reduction of possibility from many to one, and of a quiet fading of hopes and dreams.

Filth, Treason, Blasphemy?

There's a great little temporary exhibit at McCormick Tribune's Freedom Museum called "Filth, Treason, Blasphemy? Museums as First Amendment Battlegrounds." Basically, it's about censorship -- about artists who provoke, museums which display provocative art, and citizens who protest the public display of provocative art.

Case study: In 1999, the Brooklyn Museum of Art opened an exhibit called "Sensation: Young British Artists from the Saatchi Collection." Sounds non-threatening enough, no? Well, the exhibit itself might have created little sensation had it not been for one particular work of art by black artist Cris Ofili. The piece was called The Holy Virgin Mary, but that wasn't the controversial part; nor was the depiction of the mother of Jesus as a large black woman. The true 'crime' was that in addition to paper, oils, glitter, resin, and push-pins, the artist had intentionally flung a most unusual substance onto the linen canvas: elephant dung.

You can probably instantly see why this might be offensive to some people. Excrement thrown onto the representation of such a sacred, revered, and pure figure would be offensive in ANY religion, wouldn't it? Well, not actually. In India, where cows are sacred, bathing in water mixed with dung is considered a purifying act. And in some African cultures, dung has ritual significance: for instance, among the Samburu in Kenya, elephant dung is burned in order to bring luck to newlyweds. In defense of his art, Cris Ofili claims he is simply alluding to his own African heritage (though he was born in Manchester, England), and includes a lump or two of dung in all of his work.

So was Cris Ofili intending to be provocative? Probably. "My project is not a P.C. project," he admits. "It allows you to laugh about issues that are potentially serious." Was Cris Ofili intending to be blasphemous? Probably not.

Nevertheless, 'blasphemous' was how many public visitors to the Brooklyn exhibit interpreted the painting. Most notably, Mayor Rudolph Giuliani himself denounced the museum for daring to exhibit such a "sick demonstration of clear psychological problems." His angry reaction became government censorship when he threatened to withdraw millions of dollars in funding and kick the museum out of its city-owned building unless it canceled the exhibit.

The kicker, though, is the following quote by William Donohue, president of the Catholic League, who shared Giuliani's righteous indignation: "When you throw dung on our Virgin Mother, it is hate speech. It is the same thing as drawing a swastika on a synagogue."

Well, no. It's not the same thing at all.

When you draw the swastika in this example, you are not merely defacing the synagogue. You are reviving in its parishioners a horrific collective memory of relatives being systematically targeted for brutal eradication, and you are insidiously suggesting that it can happen again, anytime, right here where a Jew should feel safest.

When you throw dung on a painting of the Virgin Mary, you're pretty much just throwing dung on a painting of the Virgin Mary. True, your are defacing an icon considered sacrosanct by millions of Christians. But you are most emphatically NOT calling up past horrors or threatening renewed genocide. Dung is dung. It has never been associated with the near-extermination of an entire faith community.

So this was a clear case where artistic censorship was just plain wrong. Right?

I thought so. And I still do, with some reservations. My hesitation comes from what I noticed while exploring a "Cast Your Vote" interactive outside of the "Filth, Treason, Blasphemy?" exhibit. The touch screen of this interactive presents you with seven censorship controversies over seven works of art that have been exhibited in museums in recent years. For each work of art, the interactive asks, "Should this be censored?" Once you cast your vote, results appear in horizontal bar graphs, displaying the percentage of people who agreed with your 'Yes' or 'No' answer.

Overwhelmingly, visitors responded with "No, this shouldn't be censored" to all of the featured works of art--we're talking upwards of 75% on each 'what if.' Now, that's probably a good thing; these liberal (most likely) or libertarian Chicagoers acknowledge and value all artists' 1st Amendment Right to freedom of speech. But on two occasions, I found myself casting a vote for "Yes, this should be censored." And each time when the poll results displayed, I experienced something that felt disconcertingly like peer pressure.

I don't even remember what the paintings were about. But in each case I had firmly believed that "yes, this pointlessly and genuinely offensive work of art should be censored".....until the bar graph results appeared and I was told that "592 visitors disagree with you (76%)." Those words made me feel wrong, deviant...unpopular.

Was I wrong to think censorship was called for in this situation? Did that make me a Giuliani, or worse yet, a William Donohue? Did that mean I was one step away from becoming a right-wing moral crusader who burns Harry Potter books?

A creative, spirited, and liberal ex-girlfriend of mine named Friday would probably have answered yes--at least to the first two questions. I remember an unpleasantly heated conversation with Friday in which she confronted me about even considering the possibility that censorship might be justified in some situations. To her, censorship was right up there with murder as an unambiguous, unpardonable evil. I'm not so sure.

Let's look at an extreme example in which censorship could have saved an untold number of lives: the Rwandan Genocide of 1994. Anyone who has seen "Hotel Rwanda" with Don Cheadle knows the story; in just a hundred days, nearly 1 million Tutsi minorities--men, women, and children alike--were brutally murdered with machetes and guns by their Hutu countrymen. Only a handful survived, thanks to the efforts of brave men like hotel-owner Paul Rusesabagina and UN commander Romeo Dallaire, but even more could have been spared had but one simple step been taken by the peacekeeping forces: jamming the broadcast transmissions from the hate radio station, Radio Mille Collines. As shown to chilling effect in the film, the Hutu used Radio Mille Collines to coordinate their genocide--to inform, instruct, and incite the killers.

What is not shown in "Hotel Rwanda" is the unwillingness of the U.S. government to take any steps whatsoever to jam the radio broadcast, or even to simply destroy the station's antenna. And what was their justification for their inaction? "The American commitment to free speech."
(Samantha Powers, A Problem From Hell, page. 372).

So there are definite, clear-cut instances where censorship is not only acceptable, but advisable. Indeed, I know many Americans agree with me. If you take a look at the 2006 State of the First Amendment Survey (pdf), for instance, you'll find that quite a few people (42%) do not agree that "people should be allowed to say things in public that might be offensive to racial groups." In fact, the more liberal you are, the more strongly you will probably believe that racist terms like the 6-letter 'n' word should never be uttered by a white person's lips, and that offenders should be dealt with firmly--if not punished. If you believe this, then realize that you believe in censorship.

What's my point, then? That us liberals are hypocrites? Well, yes. But so are conservatives. No one on earth holds flawlessly consistent beliefs. (As Aldous Huxley cleverly stated, "The only completely consistent people are dead.") My real point is this: we liberals must resist any knee-jerk reaction against censorship simply because "that's what those crazy conservatives do." When there is a public outcry against a work of art, as there was against Cris Ofili's Virgin, we should take pause and consider the point of view of the offended, without dismissing them off-hand. "What has made them so distressed?" "Which nerves is the painting 'getting on', which buttons has it pushed?" "Why do they care so much?"

A beneficial exercise might be to try and proceed backwards from the emotions that we see in the offended group's outcry, and imagine, "What would it take for me to arrive at such a reaction?" "What would need to be on display for me to feel those emotions?" Then, connect the two points of view and evaluate: "Are the two emotional triggers really comparable?" "What information do I have that the protesting party might be lacking, or vice versa?" "Are they using any metaphors that simplify or polarize the issue unnecessarily?" "When you throw dung on the Virgin Mother, is it really the same thing as drawing a swastika on a synagogue?"

When we pull ourselves through such empathic cognitions, we arrive at a more nuanced appreciation of the dilemma, and a more open stance towards the solution. Should we censor the swastika? Yes. Should we censor elephant dung? No. Do we now understand why someone might be strongly offended by the elephant dung? Certainly.

Where you go from there, from that new understanding, is up to you.