In "Refrigerator Mothers," about an era when mothers were blamed for their children's autism, J.J. Hanley and David Simpson quoted popular films of the era. In this section, you can see what clips they purchased, which clips they employed fair use for, and their reasonings for each decision.
For examples of choices made FOR the application of fair use by an independent filmmaker, consider the decisions made by Kartemquin Films when making "Refrigerator Mothers." The film is available in its entirety from Fanlight Productions . In this group of clips, the filmmakers employed fair use.
A headshot of Dr. Bettelheim from a widely circulated magazine written for psychology professionals was used to support the narrator's voiceover stating that Bettelheim was highly regarded by the therapeutic industry in his day.
Images of the covers of popular magazines with articles written by Bruno Bettelheim are used to underscore the subject's voiceover stating that Bruno Bettelheim had high visibility and that professionals and parents took cues from his work.
Use of the image of the front cover establishes the book to which the subject's voiceover is referring when he states that he wrote a review of this book.
Use of these clips from popular b & w movies of the 40s and 50s, supports the subject's statement that "in the 40s and 50s, psychoanalysis was central to popular culture and that it was in the ether everywhere."
NOTES: The previous four examples can been seen as a collection of images used to establish the general attitude in the country towards Bettelheim's work, and psychotherapy in general, during the time period in question. They are used to illustrate the statements we are making. It is important to note that the clips are short--just long enough to make our point. In some cases we are also critiquing them.
ACTION: We claimed fair use. If questioned today, we would point to case one and two of the Documentary Filmmakers' Statement of Best Practices in Fair Use.
For examples of choices made AGAINST the application of fair use by an independent filmmaker, consider the decisions made by Kartemquin Films when making
Refrigerator Mothers. The film is available in its entirety from Fanlight Productions.
In this group of clips, the filmmakers purchased the rights to the copyrighted material.
This series of clips of autistic children was taken from 16 mm films held at the Institute's library in Chicago. The scenes were imbedded in industrial films and were originally produced by European organizations 40 to 50 years ago.
ACTION: We used the names listed in the Institute's films' credits to research and make contact with the listed organizations. Most of them are no longer in existence and in most instances we were unable to track down any record of the original copyright holder. In the few cases where we found the institution where the images were recorded no one was willing to claim ownership from their institution. While we considered these clips Orphan works, the protocol of the time surrounding such matters was hazy and we ended up claiming fair-use on our cue sheets. However, as the status of orphan works is clearer today we would claim these works accordingly.
Mother: a song written and recorded by John Lennon - The song is used under the film's opening credits to set a tone for the film and accompany a photo montage.
NOTES: This element illustrates the need to try multiple avenues in licensing works and the luck often involved in succeeding. The song was under our titles and clearly was not an easy fair use claim. However, as we really wanted to use the piece and feared that the licensing fee would be prohibitive, we decided to pursue multiple avenues for permission.
ACTION: We requested permission to use this song from Sony ATV Music Publishing on several occasions and on each attempt were denied on the grounds that none of John Lennon's music is ever licensed and if it were, it would be too costly (in the hundreds of thousands of dollars under title credits) for a non-profit documentary film production. On a whim, we mailed a copy of the demo, in which we used the song under title credits, to Yoko Ono at her residence in New York City. Within a week or so, a fax came back saying "Mrs. Lennon wants you to have to the song." We then received official word from her attorney that we were granted permission to use the song and the negotiations began.
They initially offered us a severely discounted licensing fee of $15,000, however this was both too high for our budget and double what we had paid for other music rights. If we paid Sony $15,000 we would have to pay the same for the other pieces of music we were licensing under a "most favored nation" clause in our contracts with them. We had to write back to Sony ATV and say that we could only pay the $7,500 that we had paid others. They agreed and we were able to use the song.
Puff the Magic Dragon: a film by the My Company and the song written and composed by Peter Yarrow and Lenny Lipton - Puff the Magic Dragon is an animated videotape chosen by one of the documentary's non-verbal autistic subjects to watch while he visits his mother from his group home. His choice of the film is deliberate and one which he makes almost every time he visits his mother. It supports his mother's on-camera statement that he tries to communicate with her about himself through this movie, which tells the story of a boy who cannot talk or communicate in any way.
NOTES: This element illustrates the complexity and confusion in which one can become engulfed in licensing footage and music, a process that is not only time-consuming but often unexpectedly costly to filmmakers. A Fair-Use argument exists for use of this footage because the images and music are part of a videotape deliberately and naturally chosen by one of the documentary's subjects. However, because we used so much of the animated video and because we show our subject enjoying it in the way the creators may have intended, we decided we wanted to try to license this footage.
ACTION: We received permission directly from Peter Yarrow, owner of the My Company and co-composer of the song, to use both the footage and the 15 seconds of accompanying background music at no cost for all media, in perpetuity. Subsequently, however, while negotiating rights for a separate, unrelated song with Warner Chappell Music Publishing, we were informed that the company owned rights to the song "Puff the Magic Dragon," and that Yarrow, the artist, did not have authority to license the work to us. The resulting fee was approximately $1,800 for the use of 15 seconds of music.