USC Intellectual Property & Technology Law Clinic Wins Copyright Law Exemption on Behalf of Filmmaker

From the University of Southern California Law News Service
Contact: Gilien Silsby at (213) 740-9690 or (213) 500-8673

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USC Intellectual Property & Technology Law Clinic Wins
Copyright Law Exemption on Behalf of Filmmakers

A team of USC Law students from the USC Intellectual Property and Technology Clinic has helped secure an exemption that will allow documentary filmmakers to use material contained on DVDs and other sources that were previously off limits.

The exemption to the Digital Millennium Copyright Act (DMCA) was announced today by the United States Copyright Office. The Digital Millennium Copyright Act of 1998 makes it a crime to break the digital locks on DVDs and other media. The restriction prevented filmmakers from making fair use of material, or using public domain material.

Together with Beverly Hills entertainment attorney Michael C. Donaldson, the students represented Kartemquin Films of Chicago, IL, the International Documentary Association, and a national coalition of documentary filmmakers and filmmaker organizations.

“This is a huge win for documentarians,” said Prof. Jack Lerner, director of the Clinic.  “Instead of using DVDs, filmmakers were forced to use costly, time-consuming, and technically inadequate workarounds, like taking the footage they sought for their films from VHS tapes. It became increasingly clear that these were not viable alternatives, as such material is either unavailable, too degraded, or technically unsuitable for documentary filmmaking.”

Under Lerner's supervision and in collaboration with Donaldson, two USC Law students in the IP Clinic drafted comments and reply comments to the United States Copyright Office and took the lead in coordinating the coalition of filmmakers and organizations. The students also helped filmmakers from Kartemquin Films prepare their testimony before attending hearings before the Copyright Office in Washington, D.C.

“It was so fulfilling to take what I have learned in the classroom and apply it to a real-world situation,” said Ashlee Lin ‘10, a recent USC Law graduate  who has worked on the project for the past year. “I learned so much from this project--not just about copyright issues, but also about the administrative rulemaking process. These hearings will be a great opportunity for us to see how our clinic work can impact real people.”

Many filmmakers, particularly those who incorporated current or historical events into their work, have been restricted from using a wealth of material.

“It was highly unfair,” said Chris Perez ‘09, who worked on the project as a third-year law student last year. “For example, a filmmaker may need to quote from copyrighted material, such as a motion picture or an advertisement, to make a critical point about that film or advertisement. Fair use, particularly in documentary filmmaking, is a critical part of free expression in a democracy; without it, many documentaries simply could not be made.”

Today’s announcement is a victory for documentary filmmakers because they now may use previously restricted materials to tell their stories.

“This exemption will affect documentary filmmakers everywhere,” Lerner said. “The DMCA had made it nearly impossible for filmmakers to exercise their fair use rights. Today’s ruling restores those rights so that documentary filmmakers can continue to have a vital role in our culture, whether as reporters, critics, commentators or educators.”

Added co-counsel Donaldson:  "This is a great day for documentary filmmakers who have suffered under the threat of criminal prosecution for activities that otherwise complete, 100 percent legal. Public Domain material and material used pursuant to fair use are the life blood of the documentary filmmaker."

USC Law students Jimmy Chen ’12 and Daniel Fullerton ’12 are now working to inform the filmmaking community about the exemption.

“We are thrilled to have the opportunity to spread the word,” said Chen. “We hope to simplify the legal jargon so that filmmakers can effectively exploit this change in the law."

"It is very exciting to work on a project that will have such an immediate and tangible effect on so many people,” added Fullerton. “I am looking forward to educating documentarians on the new exemption and witnessing the impact that it will have on their work."