STANFORD, Calif., February 27, 2007—The Fair Use Project of the Center for Internet & Society at Stanford Law School announced that it has teamed with Media/Professional Insurance and leading intellectual property attorney Michael Donaldson to provide critical support for documentary filmmakers who rely on the “fair use” of copyrighted material in their films. The initiative was announced at the International Documentary Association’s 25th Annual Celebration of Academy Award Documentary Nominees in Beverly Hills February 22, 2007.
“Documentary filmmakers who use copyrighted materials in their work under the ‘fair use’ doctrine of copyright law have come under tremendous pressure in the face of demands for huge licensing fees from copyright holders and overly-aggressive enforcement of copyrights,” explained Lawrence Lessig, founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School.
“The mere threat of a lawsuit can keep an important film on the shelf for years,” Lessig said. “This has been a tremendous problem for documentarians because their films depend on the inclusion of copyrighted material they seek to comment on, discuss, and contextualize.”
In order to help solve this problem, the Fair Use Project has announced that it will agree to provide pro bono legal representation to certain filmmakers who comply with the Documentary Filmmakers’ Statement of Best Practices in Fair Use published by the Center for Social Media at American University (www.centerforsocialmedia.org/fairuse). Accordingly, the filmmaker will have counsel in place prior to the release of the film should the filmmaker face claims of copyright infringement. Media/Professional, in turn, will provide insurance coverage against copyright infringement liability in the event the filmmaker proves unsuccessful in defending the claim. In situations where the Fair Use Project is not in a position to promise pro bono representation, Donaldson and other leading intellectual property attorneys will be available to defend claims at favorable rates. Either way, the filmmaker will have counsel in place and protection from liability via insurance.
“This is going to have a very positive impact,” explained Anthony Falzone, executive director of the Fair Use Project. “This initiative will let filmmakers to stand up for their ‘fair use’ rights where they were unable to do so before. They will have top-notch lawyers ready to defend them and insurance in place should they nonetheless face liability. Copyright holders will no longer be able to rely on fear and intimidation. Everyone will be on a level playing field.”
“This is a fantastic development,” said Leib Dodell, president of Media/Professional. “Documentary films are an important source of education, commentary and criticism. Rigidly requiring licenses or releases in all cases does not give filmmakers the flexibility to take advantage of ‘fair use’ in appropriate situations. This program will help us offer affordable insurance coverage in situations where coverage was previously difficult, if not impossible, to find.”
"This is an extraordinary breakthrough for documentary filmmakers," said Davis Guggenheim, director of the Academy Award-winning film An Inconvenient Truth. "We have a clear map to guide our practice and lawyers to defend our work. Media/Professional has set an important example for other insurance companies. I am very hopeful this will change the way documentary films get made."
The initiative will be guided by an advisory board that includes documentary filmmakers Kirby Dick, Davis Guggenheim, Arthur Dong and Haskell Wexler; professors Peter Jaszi and Lawrence Lessig; and intellectual property attorneys Michael Donaldson and Anthony Falzone.
“There is a tremendous amount of credit to be shared here,” explained Falzone. “Peter Jaszi and Pat Aufderheide did a phenomenal job spearheading the development of best practices through the Center for Social Media. Michael Donaldson has worked in this field for years and cultivated an extremely positive relationship with Media/Professional that paved the way for this partnership. Media/Professional has once again proven itself a leader in this field by stepping up to provide a unique product that fills an important need. Several folks at the University of Connecticut School of Law, including Tom Baker, William Breetz, and Peter Kochenburger, were also instrumental in helping us formulate our approach to insurance issues.”
“This is the culmination of a lot of hard work by a lot of dedicated people,” Donaldson said. “We are very excited to help preserve and expand the role of documentary film as an important medium for raising and discussing important social issues.”
About the Fair Use Project
The Stanford Center for Internet and Society's "Fair Use Project" ("the FUP") was founded in 2006. Its purpose is to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom. The FUP represents filmmakers, musicians, artists, writers, scholars, and other content creators in a range of disputes that raise important questions concerning fair use and the limits of intellectual property rights. In doing so, it relies on a network of talented lawyers within the Center for Internet and Society, as well as attorneys in law firms and public interest organizations that are dedicated to advancing the mission of the FUP. The FUP provides an expanding array of assistance to content creators. It has advised prominent creators and distributors of documentary films concerning fair use, defamation, trademark infringement, and other issues relating to the appropriate bounds of free expression. While is impossible to eliminate completely the risk of a dispute, this analysis helps reduce and identify liability and litigation risks before the fact, so that informed decisions can be made.
About the Center for Internet and Society
The Center for Internet and Society is a public interest technology law and policy program at Stanford Law School and a part of the Law, Science and Technology Program at the law school.
About Lawrence Lessig
Lawrence Lessig is the founder and director of the Center for Internet and Society and the C. Wendell and Edith M. Carlsmith Professor of Law at Stanford Law School. Professor Lessig represented website operator Eric Eldred in the U.S. Supreme Court case Eldred v. Ashcroft, a challenge to the 1998 Sonny Bono Copyright Term Extension Act. He was named one of Scientific American's Top 50 Visionaries for arguing "against interpretations of copyright that could stifle innovation and discourse online.”
About Anthony Falzone
Anthony Falzone is the executive director of Stanford Law School’s Fair Use Project. He is an intellectual property litigator with more than eight years of experience and has represented technology and media clients in a wide array of intellectual property disputes including copyright, trademark, rights of publicity, and patent matters. Prior to joining Stanford Law School, he was a partner in the San Francisco office of Bingham McCutchen LLP.
About Media/Professional Insurance
Media/Professional Insurance (M/PI), based in Kansas City, Mo., is the nation’s largest provider of media liability insurance and a leading market for cyberspace liability and miscellaneous professional liability insurance. M/PI is part of Aon Underwriting Managers, a division of Aon Corporation.
Executive Director, Fair Use Project
Stanford Law School