Fair Use: Brian DePalma vs. Magnolia Pics
Rachel Linhart says:
LinkDirector Brian DePalma was interrupted by a Magnolia Pictures executive during a press conference for his film "Redacted" monday at the New York Film Festival. DePalma was discussing the fact that a montage of war photos was "redacted" by the studio without his approval when Eamonn Bowles shouted from the back of the theater. They verbally sparred about the subject of fair use, and eventually DePalma's producer jumps on stage to defend him.
IFC News was covering the conference and has footage of the exchange on You Tube.
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oddly, Eammon Bowles didn't come off as completely irrational despite being a studio suit. What wasn't clarified was whether Mark Cuban pulled the images because he had ideological problems with them or because of the fear of lawsuits. DePalma seemed to feel it was the former.
The real problem here is too many people involved in the finance and distribution of films that went to law schools and either never were or aren't anymore attorneys.
This is the kind of senseless and endless discussion of interpretation and reinterpretation of that which is quiet clear on its face and in its spirit. Fair use is exactly what it says. There's no basis to assume that the photographs, at this point in time, would need to have any clearance at all. But attorneys like to argue and debate for the sake of it! They add soooo much to the time and cost of many kinds of art/expression these days that they've convinced businessmen who don't know any better (like Cuban) that they're about to step into a mine field.
Eammon is one of thousands of fear mongers at work in the industry.
I don't know where de Palma got the photos, but I can tell you most places you go to research images don't have very reliable credit histories. The pictures could just as easily been shot by a soldier, a Life photog, or a govt photog.
This is all much ado about NOTHING.
David B.
Why is the General Counsel of the DGA commenting anonymously on a blog about this???
http://www.mcnblogs.com/mcindie/archives/2007/10/redacting_out_a.html
Look at the typekey profile name on the "a. nonymous" comment and then search for the last name + DGA and you end up with the DGA's G.C.
I'd like to comment not anonymously, but the Movable Type signin won't send me the confirmation e-mail after repeated attempts to sign up.
After watching that clip, I'd love to know about E&O insurance difficulties over the last 30 years and the impact its had on artistic expression in the US.
So a multi-million dollar directors want to rip photos off the internet, taken by people in war zones, not pay a cent or even a credit, and then claim fair use and artistic license?
Please.
He's making money off of someone else's work. If I took one of the photos I'd sue.
Actually the producer defended Eammon Bowles (and Mark Cuban) as much as he defended DePalma. DePalma made it sound like Cuban was scared of the controversia photos politically, whereas Bowles defended Cuban's decision as purely legal in scope. DePalma's producer defends Cuban's decision in putting the blame on the lack of real fair use rights.
I see this all to often on BoingBoing, where the post makes it sound like one thing happened and then once I read the link (or watch the movie in this case) there is much less to it.
I haven't seen the film, but using my imagination, I would tend to agree with the studio suit that redacted photos might actually work (especially if they're very graphic) thematically.
This might sound tenuous, but in comedy - especially on the radio - I've always found that the bleep that replaces a curse word is much funnier than the unfettered word itself. 99% of the time, I am well aware of what the actual word is as well as its intent. The act of obscuring it in comedy makes it funny.
I suppose DePalma's point is to show the unfettered pictures, and the final artistic decision should go to him (not lawyers), but perhaps black bars further propagate the difficult nature of the pictures in this case.
The author of the post writes "They verbally sparred about the subject of fair use, and eventually DePalma's producer jumps on stage to defend him."
Actually the producer appears to back up Bowles at least as much as defending DePalma.
The producer makes the cogent point that laws around "fair use" are ineffective and that there is a legal risk here.
When #2 says "There's no basis to assume that the photographs, at this point in time, would need to have any clearance at all" they're being naive. There is also no basis to assume that you don't need clearance. There are very real risks here, and real dollars behind those risks.
As for me, I'm in favor of DePalma being able to release the film. I think that his use of the photographs fits *my* interpretation of fair use. But, I completely understand Magnolia's hesitancy to basically roll the dice without some protection that someone won't come out of the woodwork and win all the profits from the film for the rest of eternity. Althoguh as a photographer, I'd be pissed if one of my photographs was used without attribution - not pissed enough to think I deserved authorship of the motion picture, but stranger cases have brought... and won!
I need to listen no further than Richard Ashcroft losing all songwriting credit to Bittersweet Symphony to realize that Magnolia could very easily lose everything here based on a whackadoo interpretation of fair use and/or copyright.
- Mick O
"So a multi-million dollar directors want to rip photos off the internet, taken by people in war zones, not pay a cent or even a credit, and then claim fair use and artistic license?
Please.
He's making money off of someone else's work. If I took one of the photos I'd sue."
But what do you do in the case of so-called "orphaned work"? It's hardly satisfactory to junk all unattributed work just because nobody knows who to send the royalty cheque to.
For a more complete discussion of the various sides of this complex issue (which also touches on the problems of getting E&O insurance), I suggest reading Lawrence Lessig's book Free Culture. It's available online as a free pdf or audiobook, and it's an entertaining and informative read, so if you have a little time you may as well.