60-Second Q&A: Entertainment Lawyer Michael C. Donaldson

In the five years since the publication of the second edition of L.A.-based entertainment lawyer Michael C. Donaldson’s book, Clearance & Copyright, a lot has changed in the field of copyright law. Donaldson has sought to reflect those changes as well as expand the scope of his book in those years. The just-published third edition of the book, from Silman-James Press, is 500 pages instead of 350, and the chapter on fair use has almost doubled in size. There is a new chapter on characters and costumes, another on sets and set dressing, and the chapter on parody has been expanded to also cover satire and jokes. Donaldson says copyright is probably the fastest-changing area of the law.

Donaldson is general counsel to Film Independent and the Writers Guild Foundation and a former president of the International Documentary Association. He’s also the author of The E-Z Legal Guide to Trademarks & Copyrights, Fearless Negotiating, and Negotiating for Dummies. With our thoughts on independent filmmaking and documentarians, HD Studio asked him to say a few words about the fair use doctrine, which exists to protect filmmakers and other creative types who borrow the works of others in order to make something entirely new out of them.

Q: For filmmakers, is fair use the are of copyright law that’s the most in flux?

A: There’s no doubt about it. It’s moving quickly both on the legal side and on the business side. That’s because more and more people are learning the truth about fair use, which is that it is an available tool, it is now covered by insurance ‘ which was not the case even three years ago ‘ and increasingly the gatekeepers are getting comfortable with fair use.

When you say “gatekeepers,” are you referring to content owners?

Content owners are increasingly recognizing that filmmakers have a right to use their material in special ways to create new and different works. But when I referred to gatekeepers I was referring to distributors and networks who say, “You have to have a signature for everything. You can’t put us at risk.”

Are the practices different for major studios versus, say, independent filmmakers in terms of what they tend to clear and what they’ll whistle past the graveyard on?

Major studios have major budgets and major relationships, and today they’re all part of larger conglomerates that also have television outlets, which have different needs because they sell to advertisers. So the practice among major studios is more clearance-oriented than the practice among independent filmmakers. Independent filmmakers have led the vanguard in terms of fair use.

Does that mean they put themselves at unnecessary risk?

No. Absolutely not. Today you can get full insurance coverage on fair use. In the new edition I actually printed out the names and addresses of all the lawyers that are approved by the companies that write 95 percent of this insurance. Some people thought I was crazy, but I wanted filmmakers to know where they could go to get opinion letters. Once you get your film vetted by a professional, you can insurance to cover this. I don’t know how anybody else works, but our firm doesn’t say yes or no. We will talk to filmmakers about how they can make their point and use certain materials under the fair use doctrine even though they might not quite be there when they first come into the office.

What’s the biggest misconception filmmakers have where copyright law is concerned?

There are still a lot of independent filmmakers who are victims of the clearance culture mentality. Somewhere, someone put a fear into their heads that they had to get permission to tell their stories. From the founding of this nation, the First Amendment has given everybody the permission to tell your story and say your piece, to make your statement.

Today we speak in two languages: the language of words and the language of images. The language of images is the stronger of the two. When you make a film and you want to make a statement – [suppose] you want to say, “Gee, Michael Donaldson gets tongue-tied a lot when he speaks.” You can show a clip of me getting tongue-tied when I speak. You might say “Michael’s a smart guy but he makes too many jokes. He makes copyright too light and fluffy. It should be taken more seriously.” You can show any one of a number of clips of me speaking to any one of a number of audiences. They’re all over the Web. We’ve actually consolidated a lot of them on our Web site. You have a right to do that, because it’s one thing to say it, and it’s another to show it.

What I often say to filmmakers today, although it’s overly broad, and I always have caveats ‘ see a lawyer, you can’t take this and run with it ‘ is basically that if you can say it, you can show it. If a talking head in your documentary says, “The notion that religion ought to be pushed to the background may sound like an original thought, but they’re just taking a page out of John Lennon’s songbook,” you have the right, in your documentary, to have John Lennon singing from “Imagine” where he says “No more wars, nothing to fight for, and no religion, too.” When we wrote an opinion letter [in a case filed by Yoko Ono alleging copyright infringement by the makers of the documentary Expelled] that said a filmmaker had the right to do that, the courts agreed emphatically that we were right.

Filmmakers can do it, they have the right do it, and it may be covered under fair use, but that doesn’t mean they’re not going to get sued by somebody and have to defend themselves.

That’s true. But the nice thing about fair-use lawsuits is that they’re pretty clean and neat. The judge puts in the DVD, he watches it, he decides. Yoko Ono begged the court – she wanted to take depositions, she wanted discovery, all those things that cost a lot of money and take up a lot of time and the judge said, “No, I don’t care what else you people have to say about it. I’ll look at the film and make a decision.” Almost all fair-use cases are decided very, very early. So you have to defend yourself, but that’s what the insurance policy is for. And here’s another good thing: People are not anxious to file specious [copyright] claims. If you lose it, you have to pay the other person’s attorney fees. So unless you’re Yoko Ono and have lots of money to throw around because you’re upset about something, you’re very, very careful before you file a copyright infringement action. It’s not something you do capriciously.