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John Solo
Professor Matt Moberly
Writing 010 (17)
April 13, 2015

Copyright in Filmmaking
Abstract
Copyright laws were originally intended to balance the rights between right owners and
content creators. However, the system has gone astray, and it needs to be reformed to
accommodate the needs of modern filmmakers. The copyright laws have failed to recognize the
unfair advantage that right owners have over filmmakers and a permission culture has been
developed as a result. This study discusses the areas where copyright laws need improvement on
like orphan works, length of copyright terms, and payments. It proposes to follow the two
successful models from Canada and YouTube which manages to address the problems that the
copyright laws have no answer to. The models suggest that filmmakers should be able to get a
license if the right owner is nowhere to be found after a period of time has elapsed. It also
explains how right owners can benefit from the advertising that comes from filmmakers and how
it can help foster an environment where both parties can exercise creativity safely. Ultimately,
this research paper explores the possibility of changing copyright to liberate filmmakers.

Background/Problem
The Copyright Act was originally intended to promote scientific and artistic progress.
George C. Hiavac and Edward J. Easterly state that copyright is a legal construction that
provides protections to works produced by an individual or entity (Hiavac et al. 8). It applies to

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both published and unpublished works. Copyright grants right owners the power to distribute the
material, build upon the work, and publicly display it. It promotes growth in any field that
requires producing an original piece of work because it prevents other people from publishing
someone elses work under their name and collecting unauthorized profit from it. Harriete Estel
Berman states an original work should be able to be featured online without fear of being
copied or having ideas or designs stolen (Berman 22). The protection from copyright allows
artist to feel confident with sharing their art with the world. However, the digital age has
changed the culture of copyright. Filmmakers now have unlimited access to other materials
thanks to vast resources that the Internet provides. As a result, copyright laws have become
outdated, and filmmakers find it difficult producing films to their full potential with the old
copyright laws. Filmmakers sometimes have copyrighted material that are present in their films.
They have to clear the rights with media gatekeepers, journalist or editors that filter the work
before publication, in order for them to distribute their film to the public and gain a profit from it.
According to Fred von Lohmann, filmmakers may be aware of fair use, which is a copyright
doctrine that permits the use of copyrighted works in certain circumstances without having to get
the owner's permission (Von 129). However the current attitudes of modern gatekeepers still
discourage many filmmakers from making films. Broadcast and cable networks challenge every
material in a film that seems copyrighted even if it appeals to the fair use policy. Because of this,
many films are unable to be made, or filmmakers cease production of an existing project
completely. Producer Jeffrey Tuchman himself writes, "I haven't used fair use in the last ten
years, because from the point of view of any broadcast or cable network, there is no such thing as
fair use (Von 128). As a result, the American public is unable to experience a film that has
reached its full potential and expresses its message freely, because fair use has failed to protect it.

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The rights clearance process is not easy for filmmakers. They have to clear the rights to
materials in their film even if it is accidental or appeared for a brief moment. For example, if
there is copyright music in their film, the filmmakers have to either clear the rights with the
respective right owners, or replace the audio with something from the public domain.
Sometimes, finding the owners is just as difficult. The copyrighted material could be outdated,
and the right owners doesnt leave any traces for the filmmakers to find them. These works are
called orphan works. They have to go through this process for each copyrighted material that
appears in their film, which is overwhelming. Sometimes, they cant even identify which
material is copyrighted in their film. Easterly and Hiavac write about how an individual or entity
doesnt have to file for a copyright in order for a work to be copyrighted (Hiavac et.al. 8). This
just complicates the process even further now that filmmakers have no reliable way of
identifying which material is copyrighted. Also, filmmakers have to pay an incomprehensible
amount of money just to include the material in their film, and it can be costly depending on the
amount of copyrighted material they have. Sometimes, their budget is small, and they have to
resort to a short license. A short license expires quickly, and once it does they have to cease
distribution of the film. These companies set out unrealistic expectations for filmmakers, and it is
slowly making the film industry collapse.
If this continues, it will develop into a permission culture. Films wont be able to
authentically express their message freely, because there is music that is replaced with free music
that doesnt belong. Filmmakers will be afraid to incorporate certain parts in their films, because
of their fear with copyright. They will resort to playing it safe, and they will leave out crucial
parts in their film. Right owners placing copyright on certain works could be detrimental to the
film industry. Soon there wont be much raw material for artist to work with, filmmakers wont
be able to build upon the works of others that inspire them without getting sued, and copyright

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will start to censor their creativity. Copyright was intended to promote artistic and scientific
progress. So far, it has done nothing but reduce all progress if any.

Solution
Many would argue that the copyright rules are perfect the way it is and changing it would
only be detrimental to the right owners and the content creators involved. They believe that the
fair use policy already protects filmmakers rights to incorporate copyrighted material in their
own films and being lenient will lead to piracy. According to Keith Aoki, Robert Greenwald
relied heavily on fair and made extensive use of Fox news clips in his critical documentary
Outfoxed (Aoki et.al. 34). The use was never challenged, and it seems that the fair use policy
was doing a tremendous job in protecting artists access to other material and putting it in their
film. However, the fair use policy isnt sufficient in dealing with the permission based culture
that has been created by the modern age. It is limited and favors commentary and parodies. The
far use policy neglects to protect films that accidently capture copyrighted material in the
background. Keith Aoki reports that John Else needed to clear the rights to Sing Faster. The
reports says he needed to cut and replace four and a half seconds from The Simpsons that were
accidently captured in one of the scenes (Aoki et.al. 23). This forces artists to be wary about
their films and it makes it less authentic. The Simpsons could have played a major role in
portraying the life of the citizen that the film was trying to do but instead John Else has to cut it
out due to copyright issues. The copyright laws right clearance process also makes it hard for
filmmakers to distribute their work. There are a lot of orphan works, and filmmakers already
have a difficult time finding copyrighted material as it is. Overall, there are plenty of issues that
the current copyright laws has no answers to.

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Canadas copyright laws solves all of United States problems with copyright. In Sarah
Sklar-Heyns scholar article Battling Clearance Culture Shock, she advocates for Canadas fair
dealing laws because she believes Canada achieve[s] the most productive balance possible
between the opposing factions in the copyright debate (Skylar-Heyn 246). Canada attempts to
balance the right between users and right owners and gives their users more rights than United
States does. Canada gives users the right to non-deliberate filming of copyrighted material
(Skylar-Heyn 246). This means that any material that is accidently captured in their film is
protected under the Canadas fair dealings. Right owners still have the right to challenge
everything else. They also solve the problem of outdated material. Unlike in United States where
they try to place copyright on old historical material, Canada limits their license to twenty years
before adding the material to their public domain. This gives filmmakers the opportunity to cover
historical topics more in depth and have more access to historical documents for their films.
Therell be more primary sources in their films, which will strengthen their argument in films.
Canada has also made its best effort to tackle the orphan works problem. If the film has tried
their best in locating the right owners and cannot find them, then the Copyright Board issues the
user with a nonexclusive license. This is the most any country has done to tackle the orphan
works problems. Although it may have its flaws since others argue it is burdening, it is a great
start.
Another solution would be to implement YouTubes method in dealing with copyright in
their videos. In How YouTube Thinks about Copyright, Margaret Gould Stewart, YouTubes
head of user experience, discusses how most right owners will allow the content with the
copyrighted material to be published to maximize their opportunities. There was a wedding video
that used Chris Browns song Forever and it garnered forty million views. Sony allowed it to

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be published and they benefited from the advertising, sponsored links, and the free promotion.
After the release of the wedding video, the song Forever hit number one on iTunes even
though it was an old song. If this method was implemented in the filmmaking industry, this will
allow right owners and content creators to fully maximize their opportunities. Right owners will
be able to reach new audiences, earn more revenue, and create new art. (How YouTube).
Stewart isnt the only one who endorses this model. Claire Miller writes YouTube shares
advertising revenue with content partners, who may be big entertainment companies like Lions
Gate or amateur videographers who have developed a following. Hundreds of these partners
make more than $100,000 a year (Miller). The profits are huge for companies willing to invest
their time in this model, and it will not only benefit big companies but amateur filmmakers as
well. Overall, YouTube has been able to demonstrate how successful this model can be, and if it
can be added to our copyright laws, imagine how many more content creators will prosper.
These proposed solutions are meant to balance the rights between right owners and users
in the film industry. They are only adding to the current copyright law to accommodate the rising
issues with modern films that have never been tackled before. They also attempt to maximize
their opportunities and create a joyful environment where distribution is simple and resources
promote creativity and advancement. The original intent of copyright was to promote artistic and
scientific progress. With these solutions progress will definitely be made.

Conclusion
The unfair treatment of filmmakers in the copyright industry is often overlooked by many
individuals, because it doesnt directly concern them. However, it is frustrating for a filmmaker
to have a brilliant idea that has the potential to be impactful, but he/she dont have the resources
to bring it to life. Copyright is meant to advance scientific and artistic progress. It protects the

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works of many creators, and it prevents others from profiting off someone elses hard work.
However, USs copyright laws favors right owners so much that it impedes filmmakers
progression. Right owners often challenge every copyright material that are present in a film
even if it is in the public domain. Filmmakers have to pay an incomprehensible amount to right
owners, distinguish which part of their films is copyrighted, and replace media to avoid lawsuits.
This is time consuming, and it distracts filmmakers from their craft. Instead of having to worry
about how theyre going to get their message across, they are more worried about which right
owner is going to sue them for which part of their film. They are more afraid of right owners
than they are in voicing their thoughts. To be fair, the demands for clearance and payments are
not what is wrong with the copyright law. Instead, they are the direct result of the permission
based culture that centers on the idea that owners have right to sue a filmmaker that uses six
seconds of their copyrighted song in their film. We have mistaken adding to old reputable ideas
as another form of piracy. It is not. Most filmmakers want to better society when incorporating
other material into their work.
Copyright definitely need to continue, because artist have no other method that allows
them to distribute their work safely to the public. However, imagine a world where filmmakers
have a few obstacles to overcome. Their two hundred dollar film being able to reach tens of
thousands of viewers and revolutionize the way they eat, work, or live. Low budget films being
able to enter film festivals, and audiences resonating with every second of the film. Right owners
and filmmakers prospering from the same shared ideas and spreading the same creative
atmosphere to others. Copyright is a great tool but it doesnt have to stop here. It needs to adapt
into the digital era so we can foster a creative environment where right owners and filmmakers
can both win.

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Works Cited
Aoki, Keith, James Boyle, and Jennifer Jenkins. Bound by Law?: Tales from the Public
Domain. Durham, NC: 22-36. Duke UP, 2008. Print.
Berman, Harriete Estel. Copycat, Copyright, or Coincidence. Metalsmith 30.1 (2010): 22-24.
Academic Search Complete. Web. 14 Mar. 2015
Hiavac, George C., and Edward J. Easterly. "Understanding Copyright Laws and The Impact Of
The Digital Age." NACE Journal 73.3 (2013): 8-11. Academic Search Complete. Web. 8
Mar. 2014.
How Youtube Thinks about Copyright. Perf. Margaret Gould Stewart.Margaret Gould Stewart:.
TED, Feb. 2010. Web. 14 Mar. 2015.
Miller, Claire Cain. "YouTube Ads Turn Videos into Revenue." The New York Times 2 Sept.
2010: n. pag. Print.
Sklar-Heyn, Sarah. "Battling Clearance Culture Shock: Comparing U.S. Fair Use and Canadian
Fair Dealing in Advancing Freedom of Expression In Non-Fiction Film." Cardozo
Journal of International & Comparative Law 20.1 (2011): 233-276. Academic Search
Complete. Web. 14 Mar. 2015.
Von Lohmann, Fred. "Fair Use, Film, and the Advantages of Internet Distribution." Cinema
Journal 46.2 (2007): 128-133. Academic Search Complete. Web. 14 Mar. 2015.