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National Public Radio (NPR)
SHOW: Morning Edition 11:00 AM EST NPR
November 10, 2004 Wednesday
LENGTH: 1270 words
HEADLINE: Use of copyrighted material
ANCHORS: RENEE MONTAGNE
REPORTERS: NEDA ULABY
RENEE MONTAGNE, host:
With the election over, it's time to think of how it will be remembered, literally. Citizens and scholars can, of course, go to libraries and online archives for newspaper and magazine articles. Speeches are different. Documentary filmmakers hoping to explore the election will need footage. NPR's Neda Ulaby reports.
NEDA ULABY reporting:
Lionel Chetwynd has directed and produced dozens of political documentaries. He says people from all across the ideological spectrum, from right to left, are making statements on screen, and that won't stop now that the election is over.
Mr. LIONEL CHETWYND (Documentary Director): If Tom Paine were alive today, my guess is, "Common Sense" would be a video, not a tract.
ULABY: If Tom Paine had wanted to make a documentary about the current state of American politics, he'd need videotape of politicians, and there aren't many public places where he could go to get it.
Mr. PATRICK LOWNEY (Library of Congress): There's no specific federal agency that has the responsibility to follow politicians around or presidents and record every public utterance that they make.
ULABY: Patrick Lowney runs the Motion Picture Broadcasting and Recorded Sound Division as the Library of Congress. There, anyone can find video of State of the Union speeches or proceedings from the House and Senate floors. But that's pretty much it when it comes to politicians.
Mr. LOWNEY: If the president makes an address from the White House, there is no unit responsible in the government for recording that. That's the public responsibility of CBS, NBC or CNN, C-SPAN or others to run that kind of a coverage.
ULABY: Those networks take turns running what's called pool coverage. One will provide footage of an event to the other networks who excerpt it for their newscasts. They then send those finished shows to the Library of Congress. Lowney says those programs are copyrighted.
Mr. LOWNEY: So when those people come in to do research and they say, `Ah, this is the news program that I want, there's a segment that I want. Can we have a copy?' we say yes, but you have to get written permission from ABC. And if they come in with a letter, written permission, then we can make a copy.
ULABY: And that's just getting a copy, not permission to use the tape in an independent project. But while the tape may be copyrighted, the words spoken by politicians are not.
Professor LAWRENCE LESIG (Law Professor): Nobody owns the words that they utter.
ULABY: Lawrence Lesig is a law professor who writes about media, copyright and technology. Lesig says because a politician's words are in the public domain, anyone can quote them. But any broadcast footage belongs to the networks. Lesig says a good comparison might be a song.
Prof. LESIG: The lyrics for a song might be in the public domain, but the recording is not.
ULABY: For example, take "Jingle Bells."
(Soundbite of "Jingle Bells")
ULABY: "Jingle Bells" is in the public domain, but various musicians, arrangers and record companies own the rights to various recordings of it. You need their permission to use or broadcast their version. One way around that is what's called `fair use,' but some people disagree.
(Soundbite of "Outfoxed" documentary)
Unidentified Man #1: Some people say...
Unidentified Woman: Some people say...
Unidentified Man #2: Well, some people say...
Unidentified Man #3: Some people say...
Unidentified Man #4: Ah, some say it...
Unidentified Man #5: Some people say...
ULABY: The recent documentary "Outfoxed," by filmmaker Roger Greenwald, uses dozens of unlicensed clips from FOX News to argue that the network is biased. Lawrence Lesig helped Greenwald construct a strategy to defend using the clips without FOX's permission under the fair use doctrine. That allows people to use copyrighted material without permission for educational purposes. But Lesig says a successful fair use claim takes good luck, good lawyers and deep pockets.
Mr. LESIG: In order to defend your fair use right, you often will have to suffer very expensive litigation costs as well as the risk of losing your defense of your fair use right, and if you lose that Fair Use defense, then you're guilty of copyright infringement and the penalties for copyright infringement are huge.
ULABY: When Michael Moore made "Fahrenheit 9/11," he enjoyed better funding than most documentarians and could likely afford a court battle over fair use. He also used another tactic in getting around the whole permission issue. He got tape on the sly from rogue network news producers. Much of it had never aired. Outtakes and production feeds caught Mr. Bush and others, including John Ashcroft, in moments less than flattering.
(Soundbite from "Fahrenheit 9/11")
Unidentified Man #6: ...(Unintelligible)
ULABY: Since this material wasn't used in a copyrighted broadcast, its ownership is unclear. Moore refused to be interviewed for the story. So did his entire team of producers.
Filmmaker Roger Greenwald used similarly clandestine tape in his movie "Outfoxed," and he won't tell how he got it, either.
Mr. GREENWALD: If I told you, then I'd have to kill you, so, no. We got the interview with a source who sent it to us.
ULABY: The tape features a cozy pre-interview chat between Mr. Bush, then governor of Texas, and a FOX News reporter, Carl Cameron, about Cameron's wife Pauline and her political activities.
(Soundbite from "Outfoxed" Documentary)
Mr. CARL CAMERON (FOX News): To hear Pauline tell it, when she first started campaigning for you, she was a little bit nervous.
Governor GEORGE W. BUSH: Yeah.
Mr. CAMERON: But now she's...
Gov. BUSH: She getting her stride?
Mr. CAMERON: She doesn't need notes, she's going to crowds, and she's got the whole rip down.
Gov. BUSH: She's a good soul.
ULABY: All of this makes filmmaker Lionel Chetwynd uncomfortable.
Mr. CHETWYND: I'd never use unlicensed material. I never want to be in that position.
ULABY: Using unlicensed material usually means your film won't be insured, and an uninsured film generally won't be shown by major movie chains or on cable. Furthermore, Chetwynd says, before copyright holders license their material, they want to know exactly how it will be used.
Mr. CHETWYND: They want usually a script, and they want to see the pages that surround it, and then they make a judgment.
ULABY: Chetwynd says that's their right as copyright holders. He's been turned down, and he says the perceived politics of a project can make a difference. But there's another way to get the words of the powerful on film.
Mr. CHETWYND: Anyone with a high-end camera now, can go to a political rally, film what's going on and have licensable material.
ULABY: Not all politicians allow critics to film their rallies. But Chetwynd insists that a good documentarian will somehow get the tape. Patrick Lowney of the Library of Congress says filmmakers relying on their own footage have total independence.
Mr. LOWNEY: And once you've done that, then you can copyright your own videotape, and then you don't need anybody's permission to use it in whatever manner you wish.
ULABY: In fact, says Lowney, then you can send it to the Library of Congress for other people to use.
Mr. LOWNEY: We would take it. That happens. It's not frequently and it's not consistently, but yes, we would take it, and we encourage it.
ULABY: So people with a chance to videotape an event that might one day be historic can send that tape to the Library of Congress and place it in the public domain to ensure a clear picture of the past for the future. Neda Ulaby, NPR News, Washington.
MONTAGNE: This is MORNING EDITION from NPR News. I'm Renee Montagne.
LOAD-DATE: November 10, 2004