IN 1976, Congress passed the first new Copyright Act since 1909. The new act brought many changes to the law, but the biggest change may have been contained in a very small section—little more than a paragraph—that codified the doctrine of fair use. Judges in Britain and the United States had been developing the fair use doctrine in various forms since the eighteenth century, using it to explain instances when one author or artist could use the work of another without asking permission. But despite its long history in case law, the inclusion of fair use in the U.S. statute was an important milestone. Not only did it lend legislative authority to the court-made principle, but the brevity and openness of the statute’s language signaled Congress’s intention to keep fair use flexible, so that it could grow with society’s needs.
Why did Congress design a flexible fair use standard? At least one significant factor was the explosion of consumer media technology in the 1960s and 1970s. As a report from the House of Representatives’ Judiciary Committee plainly explained, “there is no disposition to freeze the doctrine [of fair use] in statute, especially during a period of rapid technological change.”1 When that passage was written in the late 1960s, photocopiers and compact audiocassettes had stirred up the publishing and music industries. And there were already indications that home video technology would further expand the scope of copyright law, forcing it to address the private, everyday activities of consumers. Just a few of the benefits of video recorders made possible by fair use include recording a television show to watch later, incorporating a video clip into a presentation, and using a popular song in a home movie. By refusing to “freeze” a fair use standard, Congress has allowed it to evolve in step with video technology, from VCRs (videocassette recorders) and camcorders to iPhones and YouTube.
Because fair use affects the daily lives of countless media consumers in addition to media producers, its legal history tells only a small part of the story. A tiny percentage of fair use disputes find their way to court or make it onto the legal radar at all. As a result, gatekeepers rather than judges resolve the vast majority of fair use conflicts and questions. Gatekeepers can be publishers, film producers, librarians, website managers, and teachers who determine whether one copyrighted object can be incorporated into another. The ranks of fair use gatekeepers also include venture capitalists and corporate executives, who decide to support or halt the development of new technologies that rely on the fair use of media. And, finally, there are the gatekeepers in our heads; uncertainty about fair use has caused many inventors and filmmakers to avoid projects and discard new ideas for fear of a copyright lawsuit.2
Any attempt to understand how fair use functions beyond the courtroom must take account of the ways that ideas about fair use are communicated to gatekeepers and the public. If there is a fair use war between big media companies, on one hand, and consumers, fans, critics, educators, librarians, and artists, on the other—and I believe there is—then it is a war that is only marginally fought in courts and Congress. Gossip, rumor, and intimidation can all be effective tools for influencing fair use practices.
Organized communication campaigns influence gatekeepers as well. The Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and, more recently, library associations and internet activist groups have all run large-scale educational campaigns to shape perceptions about copyright and fair use. In 2005, for example, the Business Software Alliance, an organization that represents the interests of large software companies, published a comic book series featuring “Garret the Copyright Ferret” to discourage software piracy. The following year, the MPAA convinced a Los Angeles Boy Scout troop to award merit patches (not quite as weighty as badges) to scouts who “learn[ed] about the evils of downloading.” In response, a public interest law film, the Electronic Frontier Foundation, launched several of its own educational campaigns, including the 2009 “Teaching Copyright” campaign aimed at educating young people about fair use. Needless to say, all of these campaigns had differing positions on fair use.3
In many instances, however, silence is the most effective weapon copyright holders have in their fair use arsenal. Ignoring a controversial example of fair use may allow one work to survive, but it does not necessarily help the next work that relies on the same principles. In 2007, for example, a filmmaker named Eric Faden made a short movie by editing together hundreds of Disney film clips, each only a word or two in length. Strung together, these words and phrases spoken by iconic Disney characters explained the basics of copyright law and fair use. How did Disney respond? They did absolutely nothing. Was this fair use? Had Faden sufficiently changed the context? Had he taken too much? Had he entered a market that rightfully belonged to Disney? These are the questions that would have been asked in court. But because Disney did nothing, we will never know the answers, and moreover, there is no clear precedent for the next filmmaker who wants to take on a similar project. Not every bold example of fair use should end in an expensive lawsuit. Nevertheless, ignoring fair use can perpetuate uncertainty in the creative marketplace. And many gatekeepers, especially those who represent large institutions, tend to respond to legal uncertainty with timidity. As a result, it is often in the interest of large media companies to remain silent and preserve the ambiguity of the fair use doctrine.
The story of the intertwined development of fair use and home video technology encompasses both legal developments and the extralegal techniques that stakeholders have devised to manage fair use. It is really the story, we will see, of a gradual transformation in approaches to fair use. Hollywood’s lawyers and lobbyists went through several stages of adjusting to fair use and home video. First they ignored the rising importance of fair use in an environment of rapid technological innovation; next they fought fair use in courts and Congress; and finally they devised strategies for managing, controlling, and even accepting fair use. Along the way, other stakeholders like librarians, amateur filmmakers, and media fans took stands as well.
In nineteenth-century U.S. cases, judges invoked fair use to protect abridgments of and quotation from published work. It allowed one author to quote from and criticize a rival’s work without having to ask permission. In the 1960s and early 1970s, however, while Congress was busy drafting the new Copyright Act, fair use took on a new purpose. It began to protect average readers, listeners, and viewers in addition to authors and other creators.
In the wake of the Kennedy assassination and, later, the Watergate scandal, we will see, fair use started to become a tool for insuring public access to information. The Second Circuit Court of Appeals in New York began to decide fair use cases by weighing individual copyright holders’ right to profit from their work against society’s right to information and culture. Of course, copyright law has always balanced the rights of creators with the rights of society. But in these cases the so-called “passive” readers and viewers of texts were brought into the equation, not just future creators, who needed to quote from and reuse copyrighted material. When MAD magazine’s writers claimed that their parodies of some Irving Berlin songs were fair use, the Second Circuit panel agreed on public interest grounds. “Courts,” the decision read, “… must occasionally subordinate the copyright holder’s interest in a maximum financial return to the greater public interest in the development of art, science and industry.” Another Second Circuit decision built on the MAD magazine decision to conclude that billionaire Howard Hughes could not use the copyrights he had purchased in a few magazine profiles of him to prevent the distribution of a new biography. MAD magazine’s parodies of well-known works of art and culture introduced social criticism and, often, political commentary to its readers. And the public had a right to know about an important public figure like Hughes, even if he was, at the same time, intensely private. The public interest arose again when the Time-Life Company set strict limits on the use of Abraham Zapruder’s famous home movie of the Kennedy assassination, which the publishing company purchased in the days after the event. In one instance, Time-Life tried to stop the publication of a book that offered a novel theory of the assassination, and a New York trial court invoked the Second Circuit’s public interest standard. “There is a public interest,” the decision read, “in having the fullest information available on the murder of President Kennedy.” Moreover, the book did not damage the market for the Zapruder film (fig. 4.1). “The Book,” the decision explained, “is not bought because it contained the Zapruder pictures; the book is bought because of the theory.” These cases began to remake fair use into a doctrine that explicitly safeguarded the public’s right to information, not just a tool for allowing new creators to build on and critique the work of others.4
The growing idea that fair use helped to protect the public’s right to information served as an important backdrop during the more than fifteen years of congressional debate leading up to the passage of the 1976 Copyright Act. New technologies like photocopiers, cable television, and later VCRs expanded users’ ability to access news and information. In congressional testimony and in court briefs, representatives from consumer technology companies regularly argued that the public’s right to information necessitated the protection of photocopying and cable television. But no consensus emerged about whether fair use could carry the weight of protecting the public’s right to information. The Supreme Court ended up evenly divided on the case that questioned whether photocopying scientific articles was fair use (Justice Harry Blackmun recused himself, leaving only eight Justices to deliberate—and disagree). And after the Supreme Court heard two different cases regarding the rights of cable television companies, Congress stepped in and imposed a statutory license on cable rebroadcasts of over-the-air television signals.5
FIGURE 4.1 Using images drawn from Abraham Zapruder’s film of the Kennedy assassination was found to be a fair use, because it served the public interest.
While courts factored the public into fair use decisions, Congress considered many versions of the bill that would become the 1976 Copyright Act. Legal scholars worried that fair use had become an escape hatch for legislators who wanted to avoid making difficult decisions about regulating new technologies. In a widely cited 1970 essay, Harvard law professor (and future Supreme Court Justice) Stephen Breyer audaciously questioned the usefulness of any copyright law in a world of easy, pervasive duplication.
On the question of fair use and photocopying, Breyer feared that the ambiguity of the fair use doctrine “may breed disrespect for the copyright law” as a whole. Breyer’s old teacher and Harvard colleague, Benjamin Kaplan, was similarly skeptical about the effectiveness of fair use for regulating new technology. Speaking to an audience at Columbia University, Kaplan rejected any legislative solution that employed fair use to solve the photocopying dilemma. “It seems hardly a statesmanlike result,” Kaplan told his audience, “to leave a sizable fraction of the population (including, I fancy, some in this audience) thus uncertainly subject to civil and even criminal liability for acts now as habitual to them as a shave in the morning.” Were photocopying and VCRs, which Kaplan mentioned in the next sentence, becoming too pervasive and too important to be left regulated by the fuzzy fair use standard?6
Professor Kaplan was not alone in thinking that the proposed copyright legislation hit too close to home. During committee hearings, members of Congress were repeatedly interested in one small subset of the public: their own children. The debates surrounding a 1971 amendment that incorporated sound recordings into the Copyright Act foreshadowed the legal skirmish over internet file sharing that took place three decades later. At one House Judiciary Committee hearing, there was bipartisan skepticism about the viability of new laws that could potentially turn countless children, including their own, into criminals. Pennsylvania Republican Edward Beister asked then Assistant Register of Copyrights Barbara Ringer about the legal responsibility of his son, who liked to record music off of the radio. “I can tell you,” Representative Beister worried out loud, “I must have a pirate in my home.” Ringer assured the congressman that the amendment under consideration at the time would not have turned his son into a pirate. Ringer then turned to speculation about home videotaping, which was still only in reach of the wealthiest Americans. (In 1971, Sony was marketing its U-Matic video recorder to institutions for $1,000, and its first consumer Betamax model was four years away.) Ringer did not bother to opine about fair use. Her response was much more pragmatic: “You simply cannot control [home videotaping]…,” Ringer explained. “I do not see anybody going into anybody’s home and preventing this sort of thing.”7 For the first time, any copyright regulation that addressed emerging technologies would apply to activities undertaken by millions of Americans in the privacy of their own homes. The scope of copyright law had grown irrevocably, and Congress was understandably reluctant to consider new legislation that would have been unpopular with voters as well as potentially unenforceable.
When Gerald Ford signed the new Copyright Act into law in October 1976, it confirmed Professor Kaplan’s fears: Congress dealt with new consumer technologies by codifying the laconic fair use standard and leaving courts and others to work out the contours of the doctrine.
A LOST OPPORTUNITY: HOLLYWOOD AND THE 1976 COPYRIGHT ACT
If Congress escaped having to craft a law that addressed home taping, it was largely because Hollywood executives failed to recognize the inevitable popularity of video recorders. The VCR is what management scholars refer to as a disruptive technology, a technology that transforms the market in unexpected ways. Disruptive technologies often prove to be the most revolutionary and, for those who bet correctly, the most lucrative. But they are also the technologies that incumbent businesses fear the most, the technologies that require the greatest adaptations and the largest risks. Although home video technology had been in development for decades, Hollywood executives were caught off guard when Sony released its consumer-targeted Betamax video recorder in May 1975.
Before the advent of the Sony Betamax, heads of film and television companies actively discouraged the development of consumer video recording technology, assuming that they could stave it off forever. Broadcasters began using commercial video recorders in the 1950s, and technology companies in Europe and Asia experimented with home video systems in the 1950s and 1960s. But CBS was the only major network or film studio to develop a home video recording device. In 1967, after a decade in development, president of CBS Laboratories Peter Goldmark demonstrated his Electronic Video Recorder or EVR to wildly optimistic press reports. Although the EVR could play only prerecorded tapes at the time, Goldmark predicted a new age of video recording. Home video, he told the New York Times, was “a new medium, a new dimension…. For the first time in video history it can free the individual set owner from complete dependence on the programmer or broadcaster.” Goldmark, however, may have momentarily forgotten that the programmers and broadcasters paid his salary. CBS’s president William Paley soon killed the project, which he had opposed from the start. Paley had been a pioneer in developing television’s primary business model—a model that remains largely in place today—and he did not want to see it destroyed. Television executives do not strive to air high-quality or even popular television shows. They use television shows to capture specific demographics, and then they sell their audience’s attention (or “eyeballs” in industry parlance) to advertisers. Shows with high ratings are regularly canceled if they do not also capture the demographics that advertisers seek. Years after the EVR had disappeared, MPAA president Jack Valenti was asked if VCRs served the public interest by allowing U.S. citizens who worked during live broadcasts of presidential addresses to record them for later viewing. Valenti conceded that if the VCR were only used in such instances, he would condone it. But, he continued to explain, advertising enables networks to make television free to viewers, and commercial time is sold by calculating when viewers watch a show, not just the size of the audience. Advertising, in a sense, underwrites the civic functions of television, and neither Paley nor Valenti could see the public or commercial good in developing a technology that would disrupt the time-bound model television viewing.8
Paley’s counterparts at MCA, the media conglomerate that owned both Universal Studios and the television production company Revue Pictures, took another approach. MCA combated home recording by investing in a disk-based, playback-only technology. But MCA’s DiscoVision, as the device was called, could not compete with the promise of freedom from the “complete dependence on the programmer or broadcaster.” The first disk-based video systems also suffered because they were late to market, released after the Sony Betamax had already begun to attract consumer interest. And playback-only systems did not have an impact on the consumer market until the advent of the DVD.9
Despite the blinders of American media executives, few others could ignore the inevitability of home video technology. Journalists regularly reported on new technical developments, and law journals were filled with essays addressing possible solutions to the legal challenges posed by home video. In 1967 a perceptive University of Chicago law student wrote,
As the technological and economic problems are solved, and new devices are produced to satisfy the “home viewer” market, it will become more important to provide the motion picture copyright owner with broader rights to the performance of his work, thereby permitting him to commercially exploit and receive the economic benefits of a growing “home viewer” market.10
As the law student observed, the late 1960s was a window of opportunity in which film and television industry representatives could have lobbied for their right to control and profit from emerging home video technology. Instead, they looked the other way. When members of Congress debated the implications of home audiotape in 1971, Hollywood’s lobbyists at the MPAA remained silent, relieved that those problems belonged to the music industry and not (yet) to Hollywood. When Congress discussed home taping during the drafting of the 1976 Copyright Act, Hollywood representatives chose not to ask for expanded rights that covered home video. In the end, because Hollywood executives did not seek a legislative solution before 1976, they were condemned to address home taping on a range of different fronts over the following decades.
WHAT WE HAVE HERE IS A FAILURE TO NEGOTIATE
Hollywood lawyers first addressed home taping in the negotiating room, not the courtroom. And they faced off against educators, who, the 1976 Copyright Act makes clear, have one of the strongest claims on fair use. The 1976 Act lists both “teaching” and “scholarship” in the nonexclusive list of activities protected by fair use, and another section creates a specific exemption for the use of copyrighted materials in the classroom. But not all educational uses are exempt nor are they necessarily fair uses. Rather than make specific determinations about what constitutes educational fair use, Congress formed committees to devise guidelines for educational fair use.
The committees were comprised of key stakeholders and gatekeepers. Publishers sat in a room with representatives from educational organizations and hammered out an extensive set of guidelines for the photocopying of books. Similarly, music recording company representatives agreed to a series of guidelines that allowed the copying of music for educational use. In many instances, these guidelines allowed for the copying of entire works to be distributed to a classroom full of students. Despite more than a century of case law, fair use remained a changing and unpredictable doctrine, and publishing and music executives preferred to allow some copying as long as they could help set the limits. Both the photocopying and music fair use guidelines were completed in 1976 and read into the Congressional Record. They did not have the effect of law, but they had Congress’s clear endorsement.11
In another room, representatives from the MPAA, the Hollywood talent guilds, and several television networks met with representatives from library and educational organizations. They attempted to draft guidelines for educational uses of taped television broadcasts. But unlike their counterparts in the music and publishing industries, the group failed to agree on a set of guidelines. They tried and failed again the following year in an intense four-day marathon. The major sticking point was the MPAA’s refusal to accept the position that recording an entire work could ever be fair use. MPAA lawyer James Bourous stated the film industry’s position: “Quite frankly, it is the view of the motion picture companies that the taping of entire copyrighted works off the air is an infringement and not a fair use.” (Ironically, Bourous later switched sides and went to work for VCR manufacturer JVC.) Undeterred by the film industry’s stubbornness, Wisconsin Democrat Robert Kastenmeier led a series of congressional hearing to further advance the discussion. It took five years, but a set of guidelines for the use of taped broadcasts in educational contexts was eventually read into the Congressional Record in 1981. In the end, the MPAA refused to endorse the guidelines, although several of their member companies did.12
The “Off-Air Taping Guidelines” permitted an entire broadcast work to be used, but it set limits on the number of times a tape could be shown in class (once) and the length of time that could elapse between the taping of the broadcast and its use in class (ten school days). Tapes also had to be erased within forty-five days of the initial taping. In the first major legal treatise on fair use, William Patry reproduced and explained the “Off-Air Taping Guidelines” in detail, with the expectation that they would become a template for educational fair use. But despite a congressional endorsement, the “Off-Air Taping Guidelines” have very rarely been used. Some secondary schools and universities have distributed the guidelines to their faculty and technical staffs over the years, but there is no evidence that the guidelines have ever been systematically enforced. While the guidelines may have been too permissive to gain the MPAA’s endorsement, they were too restrictive to be useful to educators. Without widespread adoption among educational institutions and with limited industry support, courts have simply (and correctly) overlooked the “Off-Air Taping Guidelines.” The MPAA’s hard line on taping and its refusal to negotiate with gatekeepers proved once again that they could delay the elaboration of video fair use. But they could not stop it.
NEWS, EDUCATION, RESEARCH, AND THE FOUR FACTORS
The introduction of the VCR led to the development of new companies and organizations built around the ability to tape broadcast television. And many of these companies operated in the untested margins of fair use. Schools taped television programs for use in classes; archives collected news and other TV ephemera; market research firms recorded commercials for analysis; and news programs recorded televised events for use in their broadcasts. The media company lawyers who sat out during the drafting of the 1976 Copyright Act and who stalled the negotiations over the “Off-Air Taping Guidelines” finally took notice of the impact of VCRs. They responded with a series of lawsuits, and the decisions that emerged began to concretize the boundaries of fair use of video recording.
None of the court decisions in these cases used the “Off-Air Taping Guidelines,” relying instead on the four-factor test that had been developed in the first nineteenth-century U.S. fair use cases and delineated in the 1976 Copyright Act. The four factors encourage judges and juries to consider the different markets and contexts for the use of copyright work. The first factor questions the purpose of the new use. As interpretation of this factor has evolved, it has become common to reframe it, asking whether the context has been changed. Is a song intended to entertain, for example, being quoted in a work of criticism? Are publicity posters being incorporated into a historical collage? Both of these tranpositions of context would add weight to a fair use decision. The second factor questions the nature of the copyrighted works being used. Judges have often interpreted this factor as giving works of art greater protection than didactic works, such as an instruction manual. The third factor asks whether the new work has taken more of the original than is appropriate, which does not necessarily preclude using the entire original. And the final factor asks courts to consider the new work’s impact on the market for the original; will consumers buy the new work in place of the original? The four factors contain some overlap, and it is not always clear how to apply them to a particular example. There is surely much room for subjective interpretation when applying the factors. But they have, nevertheless, been the mainstay of fair use court decisions since the nineteenth century.13
The earliest cases that dealt with fair use and videotaped television pitted corporate media companies against new businesses and organizations that were built on fair use. As a result, courts relied more heavily on the fourth factor, questioning the impact of videotaping on commercial television. Was fair use allowing some businesses to be built on the backs of others? And if so, when should the line be drawn to separate the new businesses that enhanced the public’s right to information from those that simply usurped the role of traditional media companies?
One of the first large-scale projects to use videotape in the context of research began before both the passage of the 1976 Act and the arrival of the Sony Betamax. Starting in the late 1960s, the Vanderbilt Television News Archive began to tape and preserve network television news. The archive quickly drew attention, and scholars, law enforcement agencies, members of Congress, and even Nixon White House staffers used its resources. In Lucas Hilderbrand’s fascinating study of the archive, he shows how the debates over the use of the archive intersected with larger debates about access to information. Conservatives seized on the archive’s collection to demonstrate liberal bias in network news coverage, and police studied the archive’s footage of the 1968 Democratic National Convention riots as a form of training for future outbreaks.14
The television networks responded to the archive’s activities by attempting to impose a license on the use of the material. But Vanderbilt resisted, and CBS eventually sued the archive for copyright infringement. The archive’s lawyers defended their client on public interest grounds. They claimed that the value of the archive to society—its ability to make important videos available for reference—outweighed CBS’s monopoly on its broadcasts. With the Watergate scandal looming in the background, reporters inevitably began to compare CBS’s attempts to control tapes of its broadcasts with Nixon’s contemporaneous attempts to control his White House tapes. And access to information rose to the level of a national security issue.15
The lawsuit dragged on for years, and the controversy surrounding the Vanderbilt Television News Archive led to several attempts to create legislation that would create a federal news archive at the Library of Congress or elsewhere. The Vanderbilt archive proved to be an important motivator for Congress when it included an exemption in the 1976 Copyright Act protecting libraries making single archival copies. The exception did not include motion pictures or musical works, but thanks to Senator Howard Baker from Vanderbilt’s home state of Tennessee, the exception did apply to television news programs. Appropriately, it became known as the “Vanderbilt exception.” After the passage of the 1976 Act, Vanderbilt successfully petitioned to have the CBS case dismissed from court, now that its archiving practices were clearly protected by the statute. This was a rare instance in which a dispute over the fair use of videotaped television could be addressed by legislation. After the passage of the 1976 Act, courts were left to decide whether new video ventures met the four-factor test.16
The Vanderbilt archive used expensive commercial taping machines at first. After the introduction of half-inch consumer VCRs, it became much more affordable for schools and businesses to develop video libraries and take advantage of off-air videotaping. In the New York State public school system, fair use ran into a conflicting legislative imperative. Since 1948, the New York State Legislature’s Board of Cooperative Educational Services (known as BOCES) had helped schools pool resources and cut costs. As soon as the Betamax hit the market, the Erie County School District began to act on this mandate by recording educational television shows and distributing the tapes to the schools in its district. The multimedia office dedicated to the project, however, may have acted overzealously. During school hours, they continuously taped educational programs from television, and they made copies of the tapes to be distributed to surrounding schools. During the 1976–77 school year alone, Erie distributed 10,000 tapes. Educational video makers, including Time-Life—no stranger to fair use cases—and Encyclopedia Britannica, sued BOCES, the Erie school district, and the employees involved. The lead defendant, a school district employee, had the unfortunate last name Crooks, making the case—aptly as it turned out—“Encyclopedia Britannica v. Crooks.”
The Erie tape-making office was a nonprofit organization, and the tapes were used solely for educational purposes. But the court found that the school district had gone too far in its attempt to consolidate labor and resources. The copying was not occasional and spontaneous; it was “highly organized and systematic.” The taping program was designed to save the schools from purchasing videotapes from Time-Life, Encyclopedia Britannica, and other companies. These companies already made their tapes available to schools for purchase, and the Erie program robbed them of their right to compete in the educational market. The Erie program saved time and resources, but that is not a fair use justification. The schools could very easily have obtained the same tapes from the producers. This was clearly not a fair use; it was an attempt to preempt the market for educational videos.17
If nonprofit educational uses could be unfair uses, some commercial uses could also be fair uses. In one case, a Berkeley MBA decided to turn his market research coursework into a business. Donald Bruzzone started a research company that analyzed audience responses to television advertisements. Bruzzone taped ads off of television and then showed still images from the ads to focus groups, studying their responses to the images and his questions. Bruzzone sold his analyses to academic researchers and to advertising companies. The Miller Brewing Company executives did not like the idea of their competitors profiting from Bruzzone’s analysis of the company’s commercials, and they sued to stop Bruzzone from building a business based on copying their intellectual property. In this case, the court found that even though Bruzzone’s business was premised on his videotaping hundreds of hours of commercials a week, his use still qualified as fair use. He was taping the advertisements for research, and he was only showing small portions of the work—no more than he needed—to his focus groups. Unlike the Erie School District case, Bruzzone was not replacing Miller’s market: Miller made advertisements to be shown on television, not sold to researchers. It may be true that Bruzzone’s research affected the market by leading advertising companies to create more effective ads, but valuable criticism often influences the market this way. A theater review might help to sell more (or fewer) tickets, and the review might cause the playwright to make changes to his or her play. But that kind of impact on the market is desirable. And it is very different from a review that uses so much of the dialogue and tells so much of the story that it becomes a replacement for the original. Bruzzone’s research is exactly the kind of critical activity that fair use was designed to protect, even if it is undertaken for financial gain.18
A fourth important videotape fair use case pitted commercial media companies against each other. It began in 1979 when the then new sports cable channel ESPN launched its flagship program SportsCenter. In its initial incarnation, SportsCenter showed daily highlights from sporting events; it later became a full-fledged magazine show. When designing the show, ESPN talked to other television stations about licensing the rights to rebroadcast excerpts from sporting events. But in light of the Bruzzone case and other fair use cases, ESPN’s legal team advised the channel that taping sports broadcasts and only airing excerpts from them in the context of a news program would be fair use. The executives at the local Boston television station that had paid for the exclusive right to broadcast Boston Red Sox and Bruins games, however, worried that ESPN would cut into their viewership, and they sued ESPN.
This was a great example of a use that was both highly commercial and socially valuable, since it reported newsworthy information. But there were other factors to consider. When evaluating the case, the Massachusetts court adopted the definition of fair use from the Second Circuit’s Howard Hughes case, the decision that held that fair use protected the “public’s interest in the dissemination of information.” The Massachusetts court also drew comparisons to the Zapruder film case, and the public interest justification used to find fair use of Zapruder’s film stills in a book about the Kennedy assassination. But Judge Rya Zobel, who wrote the opinion, thought the comparison ended there. The Kennedy assassination, she wrote, was a “unique and extraordinary … historical event.” The public’s right to read a theory about the assassination of a president could not be compared to their right to see sports highlights. Fair use protects news reporting and “the public’s right to access such information,” she decided, but it “is not a license for corporate theft.” ESPN retained the right to report on the facts of a particular football game or tennis match, but it could not appropriate another channel’s unique perspective on those facts. The WSBK-TV camera operators had positioned their cameras and chosen angles as well as light settings. The broadcast was a unique expression of the facts of the event, and protecting the station’s monopoly on that expression did not prevent ESPN from reporting the facts, which could satisfy the public’s right to information about the event.19
It is more difficult to see the logic behind the ESPN case than some of the others. If a theory about the assassination of a president could be illustrated with images taken from the sole film recording of the event, why couldn’t a news story use clips from the only recording of a sports event? The original broadcast was aired for audiences who wanted to watch the drama of the game, whereas ESPN’s program only showed the newsworthy moments, after the ending was known. Although this case highlighted the unpredictability of fair use, it also established an important precedent for the licensing of news footage, which emerged as a valuable business. The ESPN case demonstrated the risks involved in fair use litigation as much as it helped to clarify fair use.
These cases arose out of a particular gestational moment in the history of videotape. For a brief moment, media companies tested a litigious method of securing markets that had been newly created by the introduction of affordable VCRs. Cases that involve educational fair use or library archiving became very rare after the 1970s. Media company lawyers quickly learned that such cases can be unpredictable and schools and libraries are often more sympathetic than corporate conglomerates. But first, the largest object lesson in the pitfalls of fair use litigation lay ahead: the Sony Betamax case.
Sony v. Universal, the infamous Sony Betamax Supreme Court Case of 1984, has been called the “Magna Carta of the digital age.” It has given the consumer electronics industry the freedom to develop countless new technologies, from Tivo to the iPod. But for Hollywood studio executives, the case was really an education in the many ways of influencing fair use practices and taming potentially disruptive new technologies. While the Supreme Court decision is undoubtedly a legal milestone, it is equally important for the lessons it taught Hollywood’s leaders about what could be accomplished outside of the courtroom.
The VCR appeared at a pivotal moment in Hollywood’s investment in television. After a very slow courtship, Hollywood studios became dependent on television revenues in the 1970s. In the late 1940s and early 1950s, studio heads viewed television as competition, and they fought back with CinemaScope and 3-D. Later, television became a windfall for the studios when they began to license their back catalogs and recent releases to be aired on television. Then, in 1970, the Federal Communications Commission’s Financial Interest and Syndication (or Fin-Syn) rules turned the studios into the major feeder of television content. The Fin-Syn rules prevented the three networks—NBC, CBS, and ABC—from owning their own content, from being both producers and buyers of television programming. The rules may have prevented the networks from becoming vertically integrated, but they gave the Hollywood studios a near monopoly on the creation of primetime programming. After Fin-Syn was put in place, all of the studios increased their television production. MCA, however, with its successful television arm, Revue Productions, remained far ahead of other studios in terms of its output for the small screen.
When Sony was developing its Betamax video recorder, the president of its U.S. division, Harvey Schein, mistakenly thought television powerhouse MCA might be his closest ally. Schein hired the advertising firm Sony Doyle Dane Bernbach to sell the Betamax, and following Schein’s lead, the firm targeted MCA with its first campaign. As New Yorker writer James Lardner tells the story, the advertisers proposed an ad that read, “Now You Don’t Have to Miss Kojak Because You’re Watching Columbo (or Vice Versa).” It was an appeal to the ability of the VCR to free consumers from the tyranny of the television schedule; they could finally watch two programs that aired simultaneously. But the ad was also a direct appeal to MCA, the company that made both shows. The advertising agency sent a copy of the ad to MCA for approval, but MCA president Sidney Sheinberg was deeply disturbed by the ad copy. Sheinberg’s job was not to increase the size of his television audience; it was to sell shows to television networks. Anything that hurt the financial model of the networks would inevitably jeopardize MCA as well. Sony’s Harvey Schein, who had been a protégé of William Paley at ABC, should have known that. Sheinberg had other reasons to resist the Betamax; MCA had been working for years to develop DiscoVision, its own disk-based, playback-only system. When Sheinberg realized that Sony had won the race to market its home video technology, the former Revue Productions junior counsel led the charge to sue Sony for copyright infringement. Even if the lawsuit did not succeed in burying the VCR, it could at least delay Americans’ adoption of the technology until after MCA released DiscoVision.20
Surprisingly, Sheinberg found little support in Hollywood for his lawsuit. Perhaps the lawyers at other studios were worried about the capriciousness of fair use decisions. If so, they would have been right: the Sony case was overturned twice during its journey through the U.S. court system. In subsequent interviews, and hindsight being 20/20, heads of other studios have tended to remember that they refused to join the case because they saw the future clearly: that home video would be a boon for Hollywood. It is more likely that they were wary of entering into expensive and uncertain litigation. In the end, the only other studio that agreed to join MCA’s suit was the Walt Disney Company. Like MCA, Disney was a pioneer in creating television programming, and television remained an important part of its output. Walt Disney himself made one-time shows for NBC as early as 1950 and 1951, and he launched a regular series, Disneyland, for ABC in 1954. When the Disney Company joined the suit, the studio still regularly released television movies, and it was preparing a major revival of its 1950s television hit, The Mickey Mouse Club. The Disney studio also had a time-tested method of rereleasing films on TV and in theaters. As long as new generations of children came along, Disney had an endless supply of ticket buyers for its classics. But if audiences started to tape Disney shows and create their own libraries, it could potentially hurt Disney’s ability to rerelease its television shows and movies. Disney is such a global force today that it is difficult to remember that, in the 1970s, Disney was still a relatively small, niche studio. It had theme parks in California and Florida and a library full of classic films and TV shows, but it was not the global conglomerate that it would become. Like so many Hollywood executives, Disney’s leadership was holding on to its trusted formula and blind to the opportunities ahead. Ironically, it is the rise of home video that turned Disney into a major studio. Releasing Disney classics like Snow White (1937) and Fantasia (1940) on home video in the 1980s gave Disney the capital to fund its next wave of classic films like The Little Mermaid (1989) and Beauty and the Beast (1991).21
Disney may have joined the suit, but it was abundantly clear that the lawsuit divided the Hollywood studios. MCA’s and Disney’s combined programming only accounted for around 10 percent of television content, and as the Supreme Court would later note, they could hardly be seen as speaking for the film and television industries as a whole. In fact, other studios implicitly demonstrated their criticism of MCA’s position by not joining the suit. And during the years of testimony in the case, several television producers spoke in favor of home taping.
With limited support, MCA’s subsidiary, Universal Studios, and Disney filed their complaint against Sony in 1976, shortly after the Betamax went on sale in U.S. stores. From the beginning Universal and Disney filed complaints like buckshot. They not only sued Sony, they also included the Doyle Dane advertising agency, a number of VCR retailers, and a lone VCR early adopter (a volunteer from their law firm). If taping television shows was copyright infringement, it was not clear who would be held responsible: the individual at home, the technology manufacturer, or a conspiracy that included every link in the chain from inventor to viewer.
The newness of the technology also plagued the case. In 1976 it was unclear how consumers, educators, archivists, and others would use the VCR. Sony became one of the most heavily traded stocks in the 1970s, as investors predicted a bright future for home video. But consumers were very slow to buy the new machines. The notorious Betamax-VHS format war clearly contributed to the delayed success of the VCR. But despite the hype, this contest was relatively short-lived. Matsushita released the first VHS tape machines in 1977, and by the next year VHS was already the clear winner, outselling Betamax machines 2-to-1. Yet consumers still waited to buy VCRs. In 1980, when the format war was a distant memory, only 2 percent of U.S. households owned VCRs in either format. The VCR had a long infancy period, and no one knew the impact it would have on the entertainment industry or on the lives of U.S. consumers.22
The first incarnation of the Sony case dragged on through three years of litigation and five weeks of trial. Judge Warren J. Ferguson recognized that the case was too important to end in his court, and he accurately predicted that the Supreme Court would ultimately decide the case. Ferguson even expressed concern that home taping was an inappropriate matter for the courts in the first place. He suggested that the problem belonged more appropriately to a “government commission or legislative body exploring and evaluating all the uses and consequences of the videotape recorder.” As many judges had in the past, Ferguson took the position that court decisions were blunt instruments and new technology demanded the subtlety of statute. But the task of regulating the VCR came to him, and Ferguson took his job very seriously. In his carefully researched and argued 128-page decision, Ferguson relied on legislative history, including the earlier congressional testimony of Barbra Ringer, who was by this point Register of Copyrights, and Representative Robert Kastenmeier. Ferguson also undertook a detailed fair use analysis. He concluded that copyright holders’ monopoly on their work did not give them “power over an individual’s off-the-air copying in his home for private, non-commercial use.” The practice that had become known as “time-shifting”—recording a show for later viewing—was fair use.23
Ferguson concluded further that “neither manufacturers, distributors, retailers, nor advertisers were liable.” MCA and Disney had drawn on the 1911 Ben-Hur decision and analogies to patent law to argue that if a technology’s only uses were illegal, then the manufacturers of the technology could be held liable for its use. In other words, if the VCR’s sole or even primary purpose was the illegal copying of television, then Sony could be held accountable for consumers’ infringing use. To take another example, since guns have both legal and illegal uses, gun manufacturers are not held responsible when a gun is used in a crime. On the other hand, when Apple Computer founders Steve Wozniak and Steve Jobs teamed up in the early 1970s to design and sell “blue boxes”—devices that emitted a sound which tricked payphones into making free calls—they risked legal action, because the blue boxes’ only uses were illegal. (Luckily, the telephone companies left them alone, so they could go on to invent the personal computer.) In the case of the VCR, the evidence showed that the majority of consumers were using the machines to tape broadcast television in their homes, a practice that Ferguson found to be fair use. Moreover, most VCR owners told the survey teams that they were erasing previously watched tapes and reusing them; they were not building large libraries of videotape. Ferguson held out the possibility that library building or “librarying” might be held to be infringement if it became a pervasive practice, but there was no evidence to support that conclusion in 1979.24
Two years later, an appeals court came to the opposite conclusion. The market for VCR use had not changed significantly in the intervening years. The major difference between the two decisions was their interpretation of fair use. More specifically, the appeals court had a different take on the second fair use factor—the factor that questioned the nature of the original work. In the first Sony decision, Judge Ferguson decided that the type of shows VCR owners were taping was not relevant. When considering the public importance of The Mickey Mouse Club, for instance, Judge Ferguson approvingly quoted an earlier Supreme Court case. “The line between the transmission of ideas and mere entertainment,” Justice Earl Warren wrote, “is much too elusive for this Court to draw, if indeed such a line can be drawn at all.” Justice Warren and Judge Ferguson were attempting to meet Oliver Wendell Holmes Jr.’s 1903 call for judges to keep aesthetic decisions out of copyright cases. The appellate court in the Sony case, on the other hand, more readily made qualitative judgments. The appellate court thought that Disney’s Chip and Dale did not necessitate the same exceptional status as scientific research papers or the sole film of the Kennedy assassination. Considering the fair use case law, the court had a point. The Second Circuit’s public interest standard could be seen as requiring a distinction between information that was vital to the public and mere entertainment. And the ESPN decision reinforced this interpretation by holding that some video footage was more important to the public interest than others. Looking at MCA and Disney’s evidence, the appellate court found that the public interest was not at stake here, just “business pure and simple,” as the Supreme Court pronounced the movies in 1915.25
Certiorari, a Supreme Court review of the case, seemed inevitable, and many predicted that the Supreme Court would affirm the court of appeal’s decision. MCA and Disney executives should have been celebrating. But instead the Hollywood studio heads reacted as if they had already lost the case. First, the studios realized that a decision that found home taping to be infringement would be impossible to police. Even MPAA president Jack Valenti told a congressional committee that librarying went on in his own home. In the same hearing in which Valenti famously quipped that “the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone,” the admission about the video practices in his own home may be even more startling. Valenti told the members of Congress that despite the appellate court’s decision, “I am going to continue taping because the plaintiffs [MCA and Disney] have said they aren’t going to do anything to me. I am not committing any crime. They know that.” When the mouthpiece for an industry flaunts his own acts of piracy, something has gone very wrong.26
What went wrong in this instance is that the VCR came to be seen as a revolutionary machine, one that fulfilled the promise popular leisure had held since the mid-nineteenth century, when working-class laborers clamored for “Eight hours for what we will.” Consumers were finally free to enjoy their leisure time as they wanted, when they wanted, and in the privacy of their own homes. In the early 1980s, VCRs were also empowering “mom and pop” businesses, like drugstores and small TV repair shops that rented prerecorded videocassettes. It was a media boon equivalent to the rise of nickelodeons in the early 1900s. This revolution could not be kept down. Some experts even predicted that the appellate court’s decision would lead to a short-term surge in VCR sales, just in case the device was later taken off the market or crippled.27
LOOKING FOR THE TOOTH FAIRY
By the time the appeals court handed down its decision, Hollywood studios had already begun to embrace home video in a limited way. Encouraged by the success of Twentieth Century-Fox and entrepreneur Andrew Blay, the studios slowly started releasing films to video. Prerecorded videotape sales made up less than 1 percent of Hollywood’s total income when the appellate decision was released in 1981, but the studios were poised to move into the video market. Only two years later, that figure reached over 14 percent, or $625 million. The studio heads were also, we will see, beginning to recognize that home taping had become an unstoppable phenomenon, and they deployed the MPAA to find alternatives to the Sony lawsuit.28
The studios began with a strong public relations campaign, quieting critics and bringing their message to the press. When copyright luminary Melville Nimmer publicly expressed his admiration for Judge Ferguson’s initial decision in favor of Sony, MCA and Disney quickly hired him as an adviser to their side. The MPAA also called on its silver-tongued president Jack Valenti to issue dozens of metaphors explaining the scourge of the VCR. In addition to analogizing the VCR to the Boston Strangler, Valenti referred to it as an “unleashed animal” turning the media market into a “jungle,” and he imagined all of the VCRs as “millions of little tapeworms” consuming the industry. More tellingly, Valenti invoked the Tooth Fairy to paint a picture of the situation. Unlike the baby tooth economy, Valenti explained to members of Congress at one point, there is no force that gives studios something to replace what they lose to home tapers. Yet a Tooth Fairy–like solution is exactly what the studio heads were beginning to look for. Nimmer had not been hired simply to quiet him. Studio executives had also begun to embrace an idea that Nimmer had endorsed: that a royalty be imposed on the sale of blank tapes and VCRs to compensate producers for the money they lost to taping. It would indeed have created a Tooth Fairy–like economy.29
The MPAA and the Hollywood studios had resisted a legislative approach to home taping during the drafting of the 1976 Act, but Valenti soon realized that that had been a major strategic blunder. Shortly after Universal and Disney lost the district court case, Valenti began to explore a legislative solution. First he needed to sell the idea to Hollywood leaders. He began by bringing members of Congress to Hollywood, generally those influential in copyright legislation. Representative Kastenmeir, Senator Birch Bayh, and many others flew out to Los Angeles to speak with producers, guild representatives, and studio executives. Although most of the studio heads and lawyers had refused to join the Sony case, they appeared receptive to the possibility of legislation. But what kind of legislation was needed? Germany, Austria, and Norway had all adopted royalty systems that compensated content companies for the sale of devices and blank tapes. Could that work in the United States? A number of hearings were held on the possibility of a videotape royalty. The hearings gave Jack Valenti ample time to invent colorful metaphors and for the MPAA to parade Hollywood stars through the halls of Congress. But, in the end, none of the bills gained much support. The studios had proposed the royalty system too late.30
Sony and other consumer technology companies waged their own battle for a legislative solution, and they had the revolution on their side. Sony successfully lobbied for a videotape exemption in Japan, and the company actively pushed its case in the United States as well. Sony interested Senator Strom Thurmond in their cause when they bought land for a factory in his home state of South Carolina, and many other members of Congress were eager to ride the wave of public enthusiasm for the VCR. Championing a popular technology was easy, and politicians were reluctant to pass a bill that would have increased the price of an already expensive technology. The day after the announcement of the appellate decision declaring that home taping was not a fair use, bills began to appear that would have exempted home taping from copyright liability. Sony then joined with other consumer technology companies to solidify their hold on Congress. They formed the Right to Tape Coalition, with its apt suggestion that taping had taken on the patina of an inalienable right.31
Royalties on technology sales are not inherently at odds with U.S. copyright law or abhorrent to technology manufacturers. Sony’s management had actually proposed a royalty scheme early on in its talks with Universal,32 and just a few years later, in 1992, Congress imposed a royalty on the sale of digital audiotapes and tape decks. But the MPAA came around to the idea of royalties after consumer norms and expectations were too strong to be altered.
In a second attempt at a legislative solution, the MPAA pushed for the abolition of the first-sale doctrine for videotapes. The first-sale doctrine permits owners of books, videocassettes, and other media to resell or rent their individual copies. The first-sale doctrine makes the market for used textbooks possible, for example, and in the 1980s it created an active video rental market. Because of the first-sale doctrine, after buying copies of VHS tapes, stores can then rent individual copies of the tape as many times as they want. This system, however, prevents film producers from realizing the potential profits from successful video releases. A film studio profits from the sale of a tape to a rental store, but it does not receive additional revenue, regardless of the number of times a tape is rented. If Congress had abolished video rentals, as they would later abolish audiotape and computer software rentals, it would have changed the video business. Video might have been converted into a sale-only (or “sell-through”) business. But Congress rejected this proposal too. For the most part, we watch movies differently than we listen to music or use software. We listen to an album or song and use a piece of software many times, while, for the most part, we watch movies only once (children and media professors are notable exceptions). Rented music and software can be copied and those copies can be used repeatedly. The music and software industries successfully convinced Congress that rentals robbed them of direct sales; consumers were renting and taping instead of buying. But, since videos are generally watched only once, it makes less sense to force consumers to buy a product that they will not use repeatedly.33
The logic of video consumption, however, was only one part of the reason that the abolition of the first-sale doctrine for videotape did not gain traction in Congress. The more powerful reason is that Hollywood waited too long to make this proposal, as they had waited too long to propose any legislative solution. Like the proposal to add royalties to tape and VCR sales, the proposed repeal of video first sale came after consumers had already become accustomed to renting videotapes. Moreover, the legislation would have closed down thousands of independent rental businesses.
Although Hollywood’s lobbying efforts all failed, they help to demonstrate that the enormous amount of publicity around the Sony case gives a false impression that Hollywood studios were engaged in an all-out battle against home video. Only two studios took that stand, MCA/Universal and Disney. There was much more support in Hollywood for a compromise that would have compensated the studios for losses to home taping. And if the studios had not delayed, the structure of the home video industry might have looked a lot different.
The Supreme Court reached its decision in the Sony case in 1984, eight years after Universal and Disney first filed their complaint. In one of the court’s most famous decisions, the justices overturned the appellate court and found time-shifting to be fair use. Writing for the majority, Justice John Paul Stevens returned to examples that highlighted fair use’s potential to increase access to knowledge and serve the public interest. He wrote enthusiastically about viewers’ ability to “watch two simultaneous news broadcasts by watching one ‘live’ and recording the other for later viewing.” He used additional examples of “televised sports events, religious broadcasts, and educational programs such as Mister Rogers’ Neighborhood.” The public’s right to information was clearly being served by the new technology, even if the appellate court had doubts about the social value of Chip and Dale cartoons. Moreover, Stevens observed that the ineffectiveness of the appellate decision was weakening copyright law as a whole. In a private note to his colleague, Justice Harry Blackmun, Stevens declared that the court could not adopt an unenforceable position like the appellate court’s, one that would say: “Anyone who time shifts a single copy of a sportscast owes the copyright holder either $250 or $100, but fear not because this law will never be enforced.” In retrospect, it is easy to see the Supreme Court’s decision as inevitable, as reflecting widespread norms and public opinion; or, as film scholar Stephen Prince writes of the court, as “ratifying a decision that had already been made by popular fiat.” And it may be that the decision could not have come out any other way. But the Sony decision was made by the narrowest 5-to-4 margin, and the Justices’ deliberations were intense. In an unusual move, the Court heard oral arguments twice in the case, and we now know from internal correspondence that the justices agonized over the decision. Like Henry Fonda in 12 Angry Men (1957), Stevens had to win over his colleagues one by one.34
Clearly a watershed legal event, the Supreme Court’s decision came too late to have an impact on Hollywood’s approach to the VCR. The appeals court’s decision had proven that home taping could not be abolished. And by the time the Supreme Court’s decision came, Hollywood was focused on alternate ways to manage home taping and exploit the home video market. Hollywood studios continued to pursue a legislative solution, though none was forthcoming. More successfully, they found ways to influence the behavior of home tapers and to work with rather than fight off video tape distributors.35
The studios continued to band together to aggressively pursue businesses that used the VCR to show films in a commercial context. They sent cease-and-desist letters to bars, hotels, video stores, dance clubs, and doctor’s offices that showed videos to patrons. Most of these cases ended after the receipt of a letter; either the recipients stopped what they were doing or the studios did not follow up. “I didn’t think we could beat the system,” explained one bar owner after he received a letter from ABC warning him that showing tapes of soap operas was copyright infringement. The bar owner acknowledged that he was working in a “gray area,” and he didn’t want to be a test case. In a handful of instances, however, the studios pursued new businesses to trial. They successfully stopped video stores from growing into private or semipublic movie theaters. They were less successful when they tried to prevent a hotel from renting movies to its patrons. These were isolated cases, however. On the whole, the studios used litigation very selectively to limit infringement on their important commercial exhibition businesses. In general, the studios learned the power of using intimidation to control unwanted uses.36
The studios also teamed up with the Federal Bureau of Investigation and the State Department to pursue large-scale pirate networks in the United States and abroad. Hollywood and the law enforcement agencies had worked together to prevent piracy since the 1920s, and their efforts were never designed to catch every pirate. Instead, they worked by staging dramatic, high-profile raids on large pirate networks. The publicity that came from these raids was as important as the convictions. And the MPAA made sure that major newspapers were always informed of the busts. In one very public raid, the FBI uncovered thousands of videocassettes and film prints in the home of actor Roddy McDowell, who had recently completed his fifth Planet of the Apes film. The raid sent a strong antipiracy message to the Hollywood community, though no charges were ever brought against McDowell. They did not need to be: the dozens of stories written about the incident were enough to deter would-be Hollywood video library-builders and insider infringers.37
In addition to legal control, the studios took a more aggressive approach toward technological control of video technology through the development of copy protection (discussed in more detail in chapter 5). Polaroid, CBS, Universal, and other companies all developed methods of blocking the copying of both prerecorded videotapes and off-air broadcasts. Universal claimed to have a blocking method as early as the first Sony trial, but it was Macrovision technology that became the industry standard. Macrovision introduced “noise” into the video signal; televisions generally ignored the noise, but it interfered with VCRs when they attempted to copy video encoded with Macrovision. Starting in 1985, all of the MPAA’s member studios began to include Macrovision in their video releases. Although video stabilization devices could easily bypass Macrovision, copy protection proved to be enough of a nuisance to deter many would-be copiers of prerecorded tapes. And the studios solidified what would become a long embrace of technical protections as a means of controlling consumer behavior.38
With the prolific forwarding of cease-and-desist letters, the high-profile pursuit of pirate networks, and widespread adoption of copy protection, the studios worked to make the video market safer for renting prerecorded videos. The efforts were largely successful, and in the 1980s, the video rental market was a windfall for both the studios and the rental stores. In 1986 video sales surpassed theatrical ticket sales for the first time, although that did not stop the continued growth of the theatrical ticket market throughout the 1980s.39
It was a halcyon period, but the studios’ heads were not satisfied. They wanted more of the profits from video rentals, and they continued to be stymied by the first-sale doctrine, which allowed video stores to receive the lion’s share of the profits from video hits. The studios began to combat the issue by focusing on direct sales to consumers, or “sell-through” as it is known in the industry. In order to maximize profit from video sales, the studios generally released films at a higher price of around $70 when a film was first released on video, forcing stores to pay the higher fee if they wanted to get new releases to their customers. After several weeks, prices would come down, making tapes affordable to consumers who wanted to own tapes. In an attempt to create a sell-through market, a few studios experimented with lower-priced initial releases, hoping to attract consumer purchases. This system worked with blockbusters like E.T. (1982) and cult films like Star Trek II: The Wrath of Kahn (1982). MCA, for example, made four times as much from the video sales of E.T. than they had made from theatrical ticket sales. But the sell-through market was less effective with typical mainstream releases, which fewer viewers wanted to own and watch multiple times.40
The practice of offering tapes at high prices for the first several weeks of their release left everyone unsatisfied. Video stores could not afford to buy the number of new releases that they needed to satisfy their customers; studios could only recoup the initial sales price regardless of the rental success of a film; and consumers could not get access to videos when they wanted them. Too few copies of blockbusters went too quickly from rental store shelves, and they were generally priced too high for consumers to buy them right away.
The American film industry finally solved its video rental problem as it had solved its piracy problem in the early 1900s and as it resolved its clashes over screen credit in the 1930s—by bringing regulation in-house. In the early 1900s, as we saw in chapter 1, Edison, Lubin, and the other pirates joined forces to form the Motion Picture Patents Company. In the 1930s, as we saw in chapter 2, talent guilds took over the regulation of originality and credit that might have been the province of courts. In the 1980s, Hollywood responded to its court and legislative losses through the creation of a video licensing regime. At first, different studios tried different licensing schemes. The plans varied, but they all required retailers to license rather than buy copies of tapes. Since there was no outright sale, they preempted the first-sale doctrine. The stores were legally obligated to follow the terms of the license, which required them to share rental profits with the studios. It was exactly the same deal that early filmmakers had struck with distributors in 1903, when they stopped selling film prints outright.41
The rental stores, however, fought back. Many small stores simply ignored the agreements, and it was difficult for studios to check up on them. Other stores fought back more aggressively. Small independent stores had created the video rental business despite the studios’ lack of foresight. Now they did not want the studios coming in and taking away the market they had created. Storeowners felt, as James Lardner put it, “like colonists who had been through a few tough winters and were about to harvest a bumper crop only to learn that the mother country was going to raise taxes.” The independent storeowners responded by forming a trade association, the Video Software Dealers Association, and collectively retaliating. Through the organization, they were able to defer the imposition of the studios’ terms, but they could not hold them off forever.42
In the 1990s, Sumner Redstone’s media conglomerate, Viacom, became the principal shareholder of both a movie studio, Paramount, and the largest video chain, Blockbuster. Redstone helped to broker a licensing deal between the studios and Blockbuster. It was the deal the studios had wanted all along; they would provide as many copies of new releases as Blockbuster could rent, and in return the studios would share in the rental profits. Hollywood had successfully learned to control the video market through licensing and corporate influence, despite their losses in Congress and court.43
FROM MARKETS TO TRANSFORMATIVE USES
Hollywood’s executives and lawyers gradually learned to tame and exploit the VCR market. But a second phase of the video revolution proved to be more unwieldy. With the introduction of portable video cameras in the mid-1960s, existing genres of film making that had always survived on the untested margins of fair use began to grow in size and prominence. Artists, media fans, and documentary filmmakers who had worked largely under the copyright radar began to have real clashes with the Hollywood studios. Different studios adopted different methods for addressing these communities of media makers. Almost without exception, however, the studios avoided litigation. Instead, they employed techniques for influencing perceptions about fair use. They alternately ignored, silenced, tolerated, and intimidated filmmakers who relied on fair use. In some instances, studios worked with film and video makers to promote some aspects of fair use while discouraging others. Filmmakers responded by making creative decisions based on their own assumptions about fair use, and a range of gatekeepers from festival organizers to insurance executives contributed to the situation by enforcing many of the perceptions of fair use created by the studios. The contested idea of fair use, we will see in the remainder of this chapter, has regulated the worlds of avant-garde, fan, and documentary film and video production since the 1980s.
Although studios rarely brought litigation against avant-garde artists, fans, or documentarians, the doctrine of fair use continued to develop through court decisions. And these cases clearly influenced the fair use decisions made by filmmakers and studio lawyers. In the early home video cases, questions about the public’s right to information and copyright holders’ right to exploit particular markets dominated fair use decisions. A few fair use decisions even stated that the fourth factor—the factor that asks whether a work impinges on the market for the original—is the most important factor.44 A new range of cases, however, began to place more weight on the first factor, the factor that asks about the purpose for using the copyrighted material. Context began to trump commercial considerations.
The nature of parody, in particular, helped to prioritize this first fair use factor. As we saw in chapter 2, in the mid-1950s, MGM and Columbia Pictures sued The Jack Benny Show and Sid Caesar’s Your Show of Shows, respectively, for copyright infringement. In both cases the parody fair use defenses were evaluated largely on the basis of the television shows’ commercial impact and the amount used. Judge James Marshall Carter, who wrote both decisions, thought that Sid Caesar’s parody had taken only the outline of From Here to Eternity and added significant new story elements and gags. That was fine. Jack Benny, on the other hand, had taken too much from the film Gaslight and added too little; Benny had little to offer other than a synopsis of and possibly a poor replacement for the original.45
Throughout the 1970s, 1980s, and 1990s, defending parodies based on fair use began to look different. In a 1980 case, for instance, a New York court considered whether a Saturday Night Live television parody constituted a fair use of the State of New York’s 1977 advertising campaign and its eponymous song, “I Love New York.” As Judge Gerard Goettel perfectly described the ad campaign in his decision,
In the dark days of 1977, when the City of New York teetered on the brink of bankruptcy and its name had become synonymous with sin, there came forth upon the land a message of hope. On the television screens of America there appeared the image of a top-hatted Broadway showgirl, backed by an advancing phalanx of dancers, chanting: “I-I-I-I-I-I Love New Yo-o-o-o-o-o-rk!
Saturday Night Live responded with a sketch showing the deliberations of another town considering an advertising campaign to improve its image. The parody was called, “I Love Sodom.” The company that owned the music rights to “I Love New York” claimed that Saturday Night Live used its entire jingle, and it had damaged the market for the original. Paraphrasing the skit itself, Judge Goettel responded with a careful assessment of the aesthetic function of the parodic song:
The song “I Love Sodom” in the sketch was intended to symbolize a catchy, upbeat tune that would divert a potential tourist’s attention from the town’s reputation for gambling, gluttony, idol worshipping, and, of course, sodomy. The song was as much a parody of the song “I Love New York,” a catchy, upbeat tune intended to alter a potential tourist’s perceptions of New York as it was of the overall “I Love New York” advertising campaign.
Saturday Night Live had taken the entire piece of music, and its writers had only changed a single word, replacing New York with Sodom. Unlike the Jack Benny case from two decades earlier, Judge Goettel recognized that parodies often need to take large portions of the work they are lampooning. But even an entire work can be significantly different when it is transposed to a new context. No one would mistake a Saturday Night Live sketch for a New York State commercial. If the sketch did have a negative impact on the ad campaign, it was to remind people of the crime and vice being whitewashed by the song and dance routines in the commercials. The sketch was performing social and aesthetic critique, just by changing the context of the catchy jingle, and it was clearly a fair use.46
In a paradigm-shifting 1990 essay, Judge Pierre Leval gave a name and theory to the changing legal interpretation of fair use. Judge Leval sits on the Second Circuit Court of Appeals and has heard and written decisions in many important fair use cases. In his essay, Leval explained the reasoning he used to decide fair use cases, tracing the roots of his own thinking back to the earliest U.S. fair use decisions. Judge Leval explained that determinations of fair use turn
primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test…. If, on the other hand, the secondary use adds value to the original—if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings—this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.
Leval successfully shifted the focus onto the first factor–the “purpose” factor. He introduced a test that looked for ways that quoted works had been transformed in the new work, and he asked judges to consider whether the new work added value to the original.47
Leval’s transformative-use test began to gain influence, and in 1994 the Supreme Court adopted the test when considering the hip-hop group 2 Live Crew’s parodic rendition of Roy Orbison’s 1964 pop classic “Oh, Pretty Woman.” Both songs were popular and commercial music successes. And 2 Live Crew had taken the iconic opening chords of Orbison’s song—the heart of his work. But they also added rap and hip-hop musical elements and clearly parodic new lyrics. The justices found that the 2 Live Crew version added criticism and comment to the original, and in Justice David Souter’s elegant opinion, he wrote that, “The more transformative the new work, the less will be the significance of other factors, like commercialism.” Leval and Souter’s pronouncements signaled the end of a gradual shift in the determination of fair use. The shift in emphasis from the fourth to the first factor would embolden fair use communities, and it would help to strengthen the legal foundation of businesses based on fair use. The transformative-use test allowed new categories of books to be published, and it allowed internet businesses to flourish. (The 2 Live Crew decision appeared just a year after the introduction of the first web browser.) While that shift was taking place, however, Hollywood studios were in the process of changing their approach to fair use. Parallel to the transformation of the legal interpretation of fair use, film studios and several different communities of fair users were engaged in an elaborate negotiation to hammer out new ad hoc fair use guidelines (or norms).48
IGNORING THE AVANT-GARDE: FAIR USE AND INFORMATION COMMUNITIES
One strain of avant-garde art has always challenged the established artistic traditions that are celebrated in museums and taught in art schools. Pablo Picasso painted parodies of the works of the great masters, including Delacroix, Velázquez, and Manet. Marcel Duchamp used the entire work of another artist when he drew a mustache and goatee on a postcard of perhaps the greatest symbol of museum art, Leonardo da Vinci’s Mona Lisa. In this same vein, avant-garde film has had a long tradition of using, reworking, and commenting on popular film. Avant-garde filmmakers have frequently incorporated clips, characters, and other copyrighted elements of Hollywood films. In the 1930s, Joseph Cornell pointed the way for the avant-garde with his film Rose Hobart (1936), made largely by cutting and splicing clips from Universal Picture’s East of Borneo (1931). In the 1950s, “destruction artist” Raphael Montañez Ortiz used a tomahawk to chop up newsreel footage of an Anthony Mann western before randomly splicing the pieces back together. And in the 1960s and 1970s, Bruce Conner, the San Francisco artist known for his multimedia assemblages, made over a dozen “found footage” films using existing film material, sometimes with pop music soundtracks. These are just a few representative works of American avant-garde film, and many more films used copyrighted material without permission.
Throughout the 1960s and 1970s, American avant-garde films drew larger audiences and gained the attention of the mainstream press. Avant-garde films were screened at theaters, on college campuses, at museums, and at festivals around the world. Hollywood studios and other copyright holders, however, generally left the avant-garde alone. At the same time that the studios aggressively expanded character copyright protection to stop television producers from using studio-owned characters, Andy Warhol reimagined fictional characters to make Tarzan and Jane Regained … Sort of (1964) and Batman Dracula (1964, unfinished). At the same time that Time-Life carefully guarded the Zapruder film, Bruce Conner traveled the country showing versions of his Report (1963–1967) (fig. 4.2), his film about the Kennedy assassination that openly mixed newsreel clips, advertisements, and television commentary (though not the Zapruder footage itself).
FIGURE 4.2 Bruce Conner’s assemblage film Report (1963–1967) generously used images of President Kennedy.
Without specific case law, an unspoken fair use code structured avant-garde film and the avant-garde community. Filmmakers enjoyed almost complete freedom from claims of copyright infringement, as long as their work circulated only among the “underground” community. Even when their work reached more formal venues, filmmakers could remain confident that film studios would not bother them. But avant-garde filmmakers were neither ignorant of copyright law, nor were they completely free from the copyright permission system. They carefully guarded their own copyrights, and even though Hollywood stayed uninvolved, filmmakers used music cautiously. Animator Harry Smith and painter-turned-filmmaker Dov Lederberg experimented with Beatles scores on their underground films. But filmmakers understood that as soon as their work reached international festivals or was shown on television, they needed to secure music rights. When Christine Choy of the Third World Newsreel Collective sold the television rights to her film about women in New York’s Chinatown, From Spike to Spindles (1974), she did not realize that she could sell the exclusive television rights only once. But she knew to contact Bob Marley in order to secure music rights for the film (he generously granted the rights to “Get Up, Stand Up” for $25).49
FIGURE 4.3 Kenneth Anger’s Scorpio Rising (1964) inspired Martin Scorsese to use popular music in his films.
When filmmaker Kenneth Anger released his avant-garde classic Scorpio Rising (1964) (fig. 4.3), he freely used old film clips, advertisements, and cartoons. Some viewers were shocked by the sexual situations depicted in the film. Many filmmakers were more surprised by Anger’s flagrant use of popular music to create counterpoint and commentary. Anger’s 30-minute film used a “wall-to-wall” string of popular hits by Ricky Nelson, Elvis Presley, Ray Charles, and other musicians. Even if there was no case law, filmmakers and audiences understood the code: you could not use popular music and certainly not entire songs if you intended to show your film at prominent venues. The gatekeepers in this community were film festival programmers, and they helped to enforce the rule. Many in the avant-garde community, however, did not know that Anger actually paid $8,000 to secure permission for every song on the soundtrack. As Anger later explained to interviewer Scott MacDonald, “Since I intended to submit Scorpio Rising to film festivals and to show it around, I decided I needed to get the rights.” The licensing fee of $8,000 was an enormous expense for an avant-garde filmmaker at the time; it doubled Anger’s budget and it was more than the total budget of all but a few avant-garde films. It is easy to see why it did not occur to other filmmakers that Anger had licensed the music.50
One member of the audience was particularly struck by Anger’s soundtrack: then New York University film student Martin Scorsese. Scorpio Rising, he explained,
had been banned, but the shocking thing about it wasn’t the Hell’s Angels stuff, it was the use of music. This was music I knew, and we had always been told by our professors at NYU that we couldn’t use it in student films because of copyright. Now here was Kenneth Anger’s film in and out of the courts on obscenity charges, but no one seemed to be complaining that he’d used all those incredible tracks of Elvis Presley, Ricky Nelson and the Rebels. That gave me the idea to use whatever music I really needed.
Scorsese’s reminiscence points to a number of ways that copyright and fair use functioned in the intertwined worlds of avant-garde, student, and amateur film. His professors, the gatekeepers in his community, had set the fair use parameters for student projects. But in this instance, Scorsese learned a lesson from observing another film. It happened to be an erroneous lesson, based on the assumption that Anger had not cleared the rights to his soundtrack. But even this lesson based on too little information spurred Scorsese to use unlicensed rock music in his student films. And his student experimentation paved the way for his breakthrough use of (licensed) music in his early feature films like Mean Streets (1973) and Alice Doesn’t Live Here Anymore (1974). In this information economy, the actions of gatekeepers, the spread of rumors, and the activity (or inactivity) of copyright holders created an ad hoc system of fair use. One of the designs of such a community is that misinformation can be as powerful as accurate information.51
Inspired by Joseph Cornell, Bruce Conner, Andy Warhol, and of course Kenneth Anger, video artists have created new kinds of remixed work, using copyrighted material. Like the avant-garde filmmakers, Hollywood has generally left video artists alone, allowing their work to circulate in galleries and museums free from any fear of copyright infringement. Since the mid-1960s, pioneering video artist Nam June Paik has made many works using copyrighted images. And in 1976, video artist Dara Birnbaum reassembled clips from the television show Wonder Woman (1975) to create a feminist critique called Technology/Transformation (1976). In a particularly daring example of fair use, artist Douglas Gordon’s 1993 24 Hour Psycho slowed down the running time of Alfred Hitchcock’s Psycho (1960) to twenty-four hours. Gordon used Hitchcock’s entire film, yet the change in running time dramatically transformed the experience of watching the movie. The fast-cut shower sequence, for example, morphs into a meditative and disjointed experience in the video work.
Amidst all of the creative uses of copyrighted material reused in video art, there is one well-known example of a piece of experimental video that was suppressed by copyright holders: Todd Haynes’s 1987 film Superstar: The Karen Carpenter Story. In the film, Haynes used Barbie dolls to tell the life story of popular singer Karen Carpenter, who had died a few years earlier from complications of an eating disorder and abuse of medication. Carpenter’s family was sensitive to an exposé about her life, and her brother and collaborator, Richard, sent cease-and-desist letters to Haynes, complaining of music copyright infringement. Superstar used several complete Carpenter songs as well as segments of songs by Elton John, Gilbert O’Sullivan, and the Carpenters.
Soon after the film’s release, toymaker Mattel sent Haynes material about its Barbie patents and trademarks, but the company never seems to have sent a formal cease-and-desist letter or brought any legal action. Haynes and his producer knew that music copyright would be stickier. They worried about the legal liability of using the songs on their soundtrack, and they initially attempted to secure permission for the use of the Carpenters’ music. When permission was refused, they discussed fair use with several lawyers. None, however, thought that the use of entire songs qualified as fair use.52 As Haynes tells the story now, he decided ultimately that he was making a film for a community in which permission was not necessary. Significantly, he learned his fair use lessons from Kenneth Anger:
It was still in the era when … there was a kind of underground cinema that famously ignored issues of rights and stuff like that. I think Kenneth Anger was still working out the rights issues on many of his films—Scorpio Rising— for years after he made it.53
More than twenty years after the film was first shown, the Scorpio Rising myth still held sway over perceptions of fair use among avant-garde filmmakers. But Superstar began to change that.
Haynes eventually released the film as an “unauthorized” biopic. Richard Carpenter allowed the film to be shown at festivals for several years, and he may very well have continued to allow Haynes to screen it for a small underground community. After the video began to achieve cult status, however, Richard Carpenter and the Carpenters’ music label, A&M, sent the cease-and-desist letters to Haynes, demanding that he curtail distribution of the film. Rather than go through an expensive trial, Haynes agreed. By that point, however, the film had a growing reputation and attempts to suppress it only made it more desirable and more popular as a bootleg. As censorship so often does, Richard Carpenter drew attention to the thing he wanted to conceal.54
In the years after its release, Superstar dislodged Scorpio Rising as the seminal narrative of avant-garde fair use, replacing a liberating story with a cautionary tale. The story circulated widely and portended the closing down of a previously unfettered fair use environment. Filmmakers became more cautious about their use of music and other copyrighted material. Accounts of avant-garde video and the art world of the time regularly cite Superstar as emblematic of the narrowing of fair use. And like the lessons learned from Kenneth Anger’s experience, the fair use chapter of Haynes’s career continues to be exaggerated and misreported. Magazines and newspapers regularly refer to Haynes’s lawsuit, when he carefully avoided a lawsuit, and critics often blame Mattel for the suppression of the film rather than Richard Carpenter and A&M. In her widely read critique of corporate branding in the 1990s, No Logo, for example, journalist Naomi Klein cites Mattel’s legal action against Superstar as a classic example of growing corporate censorship. And in interviews, Haynes has confirmed that people often think that Mattel and not A&M placed legal pressure on him. Like Klein, media scholar Kembrew McLeod highlights Superstar’s legal troubles with both Mattel and A&M as typical of works whose suppression has chilled cultural production and exemplified the growing privatization of culture. Perhaps most tellingly, Superstar served as the centerpiece of Brooklyn-based Stay Free! magazine’s gallery exhibit, “Illegal Art,” which celebrated works that had been silenced by intellectual property law. As the curator of “Illegal Art” prefaced the show, “If the current copyright laws had been in effect back in the day, whole genres such as collage, hip hop, and Pop Art might never have existed.” She might also have added avant-garde film and video.55 Klein, McLeod, and the “Illegal Art” show all chronicle the very real rise of a permission culture in the 1990s and the early 2000s. But aside from Superstar, I have not located any avant-garde videos that received legal pressure of any kind during this period. (The mounting permission culture only seems to have discovered avant-garde film after the introduction of online video-sharing sites like YouTube in 2004 and 2005.) Superstar is a very rare instance from the 1980s and 1990s in which a work of experimental film and video has been suppressed by copyright law, even by a simple cease-and-desist letter. Through the circulation of a mythic story, avant-garde filmmakers internalized the permission culture growing around them.
The Superstar incident is also a case in which copyright was used to manage personal reputations, rather than preventing others from unfairly profiting from the use of original expression. We do not know exactly why Richard Carpenter and A&M chose to suppress the film, but it is surely significant that Superstar dramatized sensitive private debates between Richard and Karen Carpenter. Played by Barbie and Ken dolls, the characters in the film enact confrontations about Richard’s sexuality, Karen’s illness, and the siblings’ artistic differences. The film also intercuts scenes featuring A&M owner Herb Alpert with Holocaust footage (comparisons to Hitler tend to provoke a response). Finally, although A&M records became involved, the dispute was largely between two artists, Richard Carpenter and Todd Haynes. This is true of most of the examples in which avant-garde, experimental, or underground film and video has been at the center of a copyright infringement dispute: artists rather than media corporations have initiated complaints.
More recently, a small body of case law has dealt with fair use and experimental visual artists, including Andy Warhol, Jeff Koons, Shepard Fairey, and Richard Prince. But the cases have rarely concerned film and video work, and fellow artists rather than large media corporations have generally brought the cases. Why have Hollywood studios allowed video artists to use studio intellectual property without permission? There are many possible reasons. One is that studio lawyers may genuinely think that the majority of video artists’ work is protected by fair use. But the multiple cases against Jeff Koons, which have had wildly different outcomes, clearly show that the law is underdeveloped and highly unpredictable in this area. The studios’ silence may be a business rather than a legal decision; studio executives may think that the audience for video art is relatively small and specialized, and video art satisfies a very different market than studio films. Perhaps studios worry about the bad public relations they may engender by attacking artists. Or perhaps the art world’s self-policing economy with its cautionary myths and system of gatekeepers has satisfied most copyright holders. As we will see in the next two sections, Hollywood studios have not approached fair use in other genres of filmmaking with as much reserve.
STAR WARS FAN VIDDING AND FAIR USE BRINKSMANSHIP
Science fiction fans have a lot in common with avant-garde filmmakers and video artists. Their work often quotes from commercial media in order to make ideological or aesthetic statements. And fan film and video circulates in its own kind of underground: it is shown at conventions and clubs, and it is discussed online and in fan magazines (or zines). But Hollywood producers have approached fan communities much differently than they have approached the avant-garde. To be sure, different producers and studios have adopted disparate and shifting attitudes toward science fiction fans, and their approaches have not always been internally consistent. Science fiction fans and Hollywood producers have been engaged in a long negotiation over fair use—a negotiation that is probably still in its infancy.
A community of science fiction fan filmmakers began to emerge in the mid-1970s, although there are stories of fan films being made with the first small-gauge film formats in the 1920s. Fan film and video work responds to commercial film and television in a variety of ways. One early fan video (or vidding) pioneer, Kandy Fong, began assembling dual-projector slide shows in the 1970s to explore Star Trek characters’ emotional lives with fellow fans at conventions. Media scholar Francesca Coppa has chronicled how Fong’s experiments eventually developed into full-blown fan videos with a large following. The other urtext for fan films, George Lucas’s Star Wars (1977), inspired fan films almost immediately. One young animator and a struggling documentary filmmaker, for example, raised funds to produce a short spoof trailer called Hardware Wars (1977). Hardware Wars’ creators used the film as a “calling card,” to gain the attention of Lucas and other producers.56
But fans did not only make films to be shared among a community of other fans or for entry into Hollywood. For every fan production that was shown at a convention or film festival, there were dozens of homemade movies that never circulated beyond a small circle of friends and family. In Milford, Connecticut, for example, the special effects created for Star Wars inspired a professor of medieval literature, Russell M. Griffin, to try his hand at a science fiction film. Griffin devoured books, magazines, and television documentaries that explained the technical wizardry behind Star Wars’s special effects. The “making of” genre had practically invited him to try it for himself. Griffin had published several science fiction novels, and he learned the tricks of another medium, film, by enlisting Star Wars characters and action figures into a super-8 epic, Return to Hoth (1981). Like many fan films, Return to Hoth began with a disclaimer, announcing its debt to the original; in this case the disclaimer came in the form of an apology to George Lucas. Griffin’s film was made largely as a learning experiment, and it was shown to close friends and at his children’s school, although it did end up winning a local film festival. Largely lost to history, these kinds of homemade films have always greatly outnumbered the widely circulated films and videos that made the convention circuit. By the time camcorders became more affordable and easier to use in the 1980s, fan vidding was pervasive, with skilled fans showing their creations at national conventions on one end of the spectrum and teenagers recording themselves dressing up or playing with action figures on the other. Studios had no choice but to ignore the latter category, and the homemade films always existed under the fair use radar.57
But Star Trek and Star Wars producers took notice of fan filmmakers and vidders who showed their work at conventions. The studios did not attempt to define fan fair use rights through lawsuits or amendments to the Copyright Act. Instead, they developed a range of legal, public relations, and technical remedies. Paramount Studios, which produces Star Trek, actively encouraged Star Trek fan creations—at least at first. Paramount representatives told fans that the studio considered fan zines to be fair use, and Star Trek founder Gene Rodenberry volubly endorsed and encouraged fan creations, even when community groups profited from their work. Rodenbery had direct contact with Kandy Fong, selling her husband Star Trek outtakes and requesting copies of Fong’s videos. Decades later, in the mid-1990s, after Sumner Redstone’s Viacom bought Paramount, studio lawyers became more aggressive and sent cease-and-desist letters to fan websites that served ads next to hosted videos. There were many casualties of this change in strategy. But for close to three decades, Paramount’s relatively cordial relationship with fans helped to keep the franchise alive. As intellectual property scholar Rebecca Tushnet concludes, “Paramount has taken advantage of fan appropriation to strengthen its position and build loyalty.” Recently, Star Trek writers and actors who appeared in official Paramount releases have also worked on fan videos, truly blurring the line between professionals and fans.58
Star Wars creator George Lucas and his company Lucasfilm have acknowledged and embraced fans of their franchise, but not always as warmly as Paramount and Rodenberry. Lucasfilm has sought to have a relationship with fans, but in exchange the company has demanded some control over fan creations. Lucasfilm’s attempts to keep fans at arm’s length is a bit surprising because, as Lucas biographer Dale Pollock has shown, Star Wars fans were part of Lucas’s vision from the very beginning. One reason that Lucas felt confident taking a chance on a space opera in the first place is that he knew devotees of the genre would come out to see any new addition to the field. Lucas was also counting on the loyalty of science fiction fans when he gave up some of his directing salary in exchange for sequel and merchandising rights. After the film appeared, however, fans’ passion for the film overwhelmed Lucas. Lucasfilm and the MPAA aggressively pursued video bootleggers, who made unauthorized video copies of the film. In fact, piracy almost immediately became part of the Star Wars mythology, with MPAA representatives referring to it (with some pride) as “the most infringed film in the history of the industry.” Bootlegging became a sign of success as much as a problem to be controlled.59
Lucas and Lucasfilm have been skeptical but more tolerant of fan filmmakers and vidders than they have been of bootleggers. Lucas encountered an early test when the filmmakers of Hardware Wars, Ernie Fosselius and Michael Wiese, successfully got a copy of their film before their idol (fig. 4.4). Lucas reportedly called the parody “cute,” and then he set up a meeting between the aspiring filmmakers and Alan Ladd Jr., who had produced Star Wars for Twentieth Century-Fox. Fosselius and Wiese prepared for the meeting by honing their high-concept pitches for new projects. They were understandably surprised to be met at the studio by Ladd and a team of lawyers, all of whom sat down together to watch the film. After the screening, the lawyers concluded that the parody was likely a fair use, and the filmmakers got their chance to pitch an idea. This early encounter says a lot about Lucas’s grudging tolerance for fan films. Was he hoping that the lawyers would come to a different conclusion? Would the future of Lucasfilm and Star Wars fans have looked different if Hardware Wars had been less firmly in fair use territory? This incident clearly contributed to Lucasfilm’s long-suffering attitude toward fans. It would not, however, be the last time that Lucas employed lawyers to assess and assert his control over fan work.60
As early as 1977, the year that Star Wars first appeared, Lucasfilm attempted to take some control of fan production by establishing a no-fee licensing bureau for amateur creations. Lucasfilm would give filmmakers and vidders permission to use copyrighted material as along as the company approved of the fans’ work. This formalization of the company’s relationship with fans threatened to usher in a kind of cultural revolution in the Star Wars fan world, in which Lucasfilm assumed the role of all-powerful censor. The company justified its activities by claiming that it wanted to protect and control its brand, and as Will Brooker has shown in his rich study of Star Wars fans, Using the Force, Lucasfilm used its powers primarily to enforce a version of “family values.” The company insisted in one letter, for example, that all fanzines had to be rated PG. Since the 1970s, Lucasfilm has remained ambivalent about fan creations, alternating between salvos of cease-and-desist letters and periods of quiet. Some fans claim that Lucasfilm’s occasional barrage attacks have led to self-censorship among fan communities, which may be the intent of the periodic clampdowns.61
FIGURE 4.4 After viewing Hardware Wars (1977), a Star Wars spoof, George Lucas arranged for the filmmakers to meet with Fox lawyers.
Lucasfilm has also employed end user licensing agreements (EULAs) to expand its control over fan creations, claiming ownership of work created with official Star Wars material. EULAs often make grand statements that corporations never intend to follow through on. But Star Wars fans read their legal documents closely. Lucasfilm’s Official Star Wars Fan Film Awards, for example, used a participation agreement to continue its “strategy of incorporation and containment,” as Henry Jenkins puts it.62 Begun in 2002, the contest ostensibly encourages and rewards fan video production, even making some Star Wars material available for use in entries. But the “control” is in the fine print. The agreement limited entries to documentaries and parodies, and it forbade the use of video clips or music from the films. Entrants were only permitted to use audio files provided by the company as well as action figures. Brooker calls the contest “a sting” meant to catch fans who refused to play by the rules, and the vidders themselves were vocal in their disdain for the new terms. Lucasfilm eventually retracted its demands, and the contest continued on newly negotiated terms. This kind of fair use brinksmanship has characterized Lucas’s dealings with fans, and the Official Star Wars Fan Film Awards are a perfect demonstration of the collaborative nature of the rules that govern Star Wars fan creation: in the contest, Lucas chooses one award and the fans chose another.63
Together, Lucasfilm and Star Wars fans have thrashed out the terms of their engagement. Both Lucas and his corporation have tolerated the unauthorized use of their intellectual property as long as fans follow some understood rules. Even when these rules are broken, Lucasfilm has only occasionally taken action, usually rattling its sword with a large-scale effort rather than searching for every inappropriate fan video. Lucasfilm has even relented when fans threatened to rebel against its restrictions. This system of governance begs the question: should we call it fair use at all? Sometimes interpretations of fair use determined the outcome of these negotiations—when, for example, the Fox lawyers declared Hardware Wars to be a parody. More often, however, the codes of science fiction fan vidding are simply the result of a deliberative process, involving test cases, movement and retrenchment, and trial and error. Whether or not we want to call this system fair use, it is how communities of fair users define their rules of operation.
DOCUMENTARY FILMMAKERS AT THE GATES
Documentary filmmakers, like video artists and fans, regularly incorporate copyrighted material into their films and videos. They might, for example, use news footage of a march in Selma, Alabama, in a documentary about the civil rights movement. Or they might quote the John Lennon lyric, “imagine no religion,” in a documentary about the clash between teaching the theory of evolution and the Bible. Or a cinema verité–style documentary might incidentally capture a TV showing The Simpsons in the background of another scene. There is a fair use case to be made in all of these examples (which have roots in real films). But like avant-garde media artists and fan vidders, community standards and gatekeepers rather than lines drawn strictly by copyright law have determined fair use practices in documentary film.
At a conference at Duke University in 2004, filmmaker Chris Hegedus remarked on the changes in documentary fair use over the preceding four decades. She began by showing a clip from the 1967 film Don’t Look Back, which her husband and frequent collaborator, D. A. Pennebaker, made about a Bob Dylan tour of the United Kingdom. In one scene, she recalled, singer Donovan walked in and played a song for Dylan. At the time, it never even occurred to the filmmakers to clear the rights to the song. That was the culture of fair use in 1967. By 2004, however, documentary filmmakers had been conditioned to think about getting permission as soon as they heard even a few bars of music in a film. In Hegedus’s own 2001 film, Startup.com, one of the main subjects of the film looks into the camera and asks if the filmmakers will have to pay if he turns up the radio. Hegedus answers in the affirmative, and he turns up the music. Not just filmmakers, but the subjects of documentary films are aware of the pervasive permission culture. What had changed since 1967? The rise of an unlikely group of gatekeepers: insurance companies.64
In order to have a documentary film released in the United States, distributors insist that filmmakers obtain errors and omissions insurance (often shortened to E&O insurance). E&O insurance offers filmmakers at least some protection if their film is hit with a copyright infringement lawsuit. At some point—and it seems to have happened gradually—insurance companies decided that they would not accept fair use as a reason for the inclusion of copyrighted material in a film, and, as a result, every use of copyrighted material began to require permission.
Not every documentary needs to use a national distributor and obtain E&O insurance. In 1991, for example, University of Massachusetts professor Sut Jhally included 165 clips from MTV videos in a documentary about the treatment of women in music videos. Professor Jhally then sent out brochures and began to sell his video for classroom use. MTV sent a cease-and-desist letter, and Jhally responded by calling on the media to publicize the story. He thought that he was protected by fair use, and perhaps more importantly, Jhally—an advertising expert—did not think that MTV would want the negative publicity they might attract from a lawsuit. Jhally used his experience to start the Media Education Foundation (MEF), which now produces and distributes educational videos. MEF’s videos are frequently critical analyses of media, and they often invoke fair use to make generous use of copyrighted material. Katherine Sender’s 2006 film Further Off the Straight and Narrow, for example, uses clips throughout its one-hour running time to analyze the representation of gays and lesbians on television. The film’s academic commentary would have been much less effective without the examples, and video clips clearly do not replace viewing of the shows. It is a film that no insurance company would have supported in 2006. Yet the MEF released it without copyright complaints. In fact, after releasing more than sixty films, the MEF has only ever received two letters accusing them of copyright violations. Both letters came from producers of adult films and pertained to the film Price of Pleasure: Pornography, Sexuality & Relationships. And both producers quickly retreated after Jhally responded with a note informing them that he thought the films were fair use. MEF has been ambivalent about media companies’ silence, and at times Jhally has admitted that he wished for a lawsuit just to get some clarification about fair use. He even encouraged the two adult film companies who sent the cease-and-desist letters to sue him. Media companies’ silence has not emboldened other organizations to make educational documentaries. Is the lack of legal action a form of tacit acceptance or are media companies simply stalking their prey before they pounce? That question is enough to prevent other organizations from taking the calculated risks of the MEF.65
MEF operates in a specialized market (education) and they exist outside of the traditional network of documentary film distributors. As long as they are willing to assume the risk, MEF can rely on a broad interpretation of fair use, because they have bypassed all of the gatekeepers. But documentarians who want their work screened in theaters or shown on PBS or the History Channel must go through the proper channels. They need a prominent distributor, and they need to obtain E&O insurance from one of a handful of companies in the United States. In early 2004, a number of media scholars, documentarians, and lawyers began to bring attention to the problem. As with many copyright matters, Duke legal scholar James Boyle was ahead of the field. Duke University’s Center for the Study of the Public Domain hosted a conference, “Framed,” the conference where Chris Hegedus made her remarks about the swelling permission system for documentary films. A few months later, American University law professor Peter Jaszi spoke at the Annenberg School for Communication at the University of Pennsylvania. Jaszi proposed that professional communities create codes of best practices to define and defend their exercise of fair use. As we saw above, most codes of best practices had failed in the past when they were negotiated between copyright holders and educators. But Professor Jaszi pointed to one successful code that had been created by the Society for Cinema Studies (now the Society for Cinema and Media Studies) in 1993. The society took the position that the use of film and television stills in academic books on media studies constituted fair use. The society published the reasoning of its committee, and many academic publishers (the gatekeepers in that community) began to adopt the statement as policy. Jaszi did not mention documentary filmmakers, but Patricia Aufderheide, a communications professor at American University, approached Jaszi about creating a code for documentary filmmakers.66
Professors Jaszi and Aufderheide raised funds from several foundations. Along with a team of graduate students, they produced a riveting study of the issue, and then they traveled around the United States organizing focus groups of filmmakers to hash out a code. When the code appeared in November 2005, it clearly and boldly delineated a set of fair use practices. The statement claimed that using copyrighted material in a historical sequence (like the 1965 Selma, Alabama, march example) or the incidental capture of copyrighted material (like The Simpsons example) were fair use in this particular context. The statement had an immediate impact. Several film festivals and television channels relied on the code to make decisions about showing documentaries. The cable television programming company and film distributor IFC employed the code to claim fair use on 134 clips from Hollywood films used in Kirby Dick’s documentary about the MPAA rating system, This Film Is Not Yet Rated. The code, in other words, successfully influenced the decisions of gatekeepers.67
The larger and more surprising battle is that filmmakers were able to convince insurance companies to adopt the code. At first, the companies they approached refused to assume the new risk of insuring clips that had not been cleared. But after one company, AIG, quietly adopted the code, the other companies relented. The insurance companies now allow filmmakers to claim fair use as long as they follow the guidelines of the code and have a letter from a lawyer. The leading documentary film law firm, Donaldson Callif in Los Angeles, now handle dozens of fair use letters a day, and Stanford University’s Law School has established a Fair Use law clinic that reviews fair use claims made by documentary filmmakers. Many lawyers reviewed the best-practices document, but this was another instance of a fair use community establishing its own code of conduct outside of the courtroom. And because the policies of gatekeepers have changed, fair use has become an option for documentary filmmakers.
Many scholars and artists have become increasingly skeptical of fair use’s ability to protect amateur creators from large media companies. Lawrence Lessig has often polemically disparaged fair use as “the right to hire a lawyer,” and in his book Remix he proposes augmenting fair use with a battery of specific exemptions to help amateur creators. Along similar lines, Henry Jenkins suggests going back to the drawing board and rewriting the fair use statute. While it would be nice to see clear statutory guidelines and exemptions for fans, artists, and others who rely on fair use, a statutory solution is unlikely. In countries like England that do rely more on specific exemptions, efforts to protect parody and remixing have ultimately failed to be enacted by law. A similar fate is very likely in the United States.68
Exemptions might also begin to replace the flexibility of fair use, which has allowed the doctrine to change over time and adapt to different cultural and political contexts. Fans do not need the same fair use conventions as scholars or documentary filmmakers or consumer technology companies. Fair use cannot be a one-size-fits-all solution. Fair use is perpetually in process, and it is negotiated not only through legal means but also, and primarily, as we have seen, through the circulation of information among communities that rely on fair use. The future of fair use belongs to groups that are best able to control information, not necessarily those with the best lawyers and lobbyists. In the digital age, however, the practice of fair use is increasingly restrained by technology. The next chapter examines the fate of fair use after the passage of the 1998 Digital Millennium Copyright Act.