Fair Use in Fiction Film
Quick note: none of the following is legal counsel, but rather an attempt to get my head around and share new information. Always consult a lawyer when dealing with these situations….
Over the past few weeks, producer Steve Beal and I have been getting a crash course in copyright law. Like many truly independent films, The New Year Parade had very little money to work with. When I first approached producers with the script, I was told it could not be shot without a much larger pot of cash.
Instead, we looked at at other independent production models, particularly taking what I learned on Eugene Martin’s The Other America and fusing it with Jim McKay’s approach on Our Song. Both were weaving actors into real life situations, enriching their stories with documentary realism: Eugene placed actor Tobias Segal in a real housing shelter, while Jim McKay inserted his young cast into the Jackie Robinson Steppers Marching Band. 
We approached the South Philadelphia String Band with hopes that we could work with them for two weeks. Instead, they welcomed us in, beginning a two-and-a-half year collaboration. They allowed our actors in on rehearsals and drills, had them build props, and got us press passes to shoot the 2005 parade with 5 cameras.
The doc/fiction hybrid model is as old as narrative film. Edwin Porter mixed actual footage of real firefighters with staged recreations in Edison’s A Day in the Life of an American Firefighter in 1903. I’d suspect his reasons were similar - to build a strong sense of realism while saving money. You can find more on the film here.
Of course, shooting under documentary conditions means the filmmaker has less control over thedetails of their film. This can get tricky when it comes to copyrights, particularly music rights. In The New Year Parade, the South Philadelphia String Band plays a few snippets of music that we had no control over, but which are essential to the story. Generally, filmmakers need to license all work included in their films before securing Errors and Omissions insurance and distribution. This can become prohibitive, especially for low budget projects. For instance, a recent Mummer documentary reportedly paid 150 thousand dollars to clear their music rights.
Fortunately, copyright law recognizes that our culture builds upon the past to make new work. At the same time, it is important that copyright owners be able to monetize their work and have some say in its general usage. To rectify these two factors we turn to Fair Use. Fair Use essentially states that under certain conditions, a copyrighted work may be cited without license. Because I’m still getting a handle on this myself, I’ll direct you to a great post over at SelfReliantFilm.com, which lists several resources on copyright law. I’d especially recommend the Best Practices Handbook and Fair Use in Motion Pictures documents over at the Center for Social Media.
Historically, Fair Use has mostly been applied to documentary film, although I’ve been told Once used Fair Use to secure their E&O because it was shot under documentary conditions. For me, it’s inconceivable that we would replace the documentary audio with studio tracks. We are hoping to keep the original for several reasons:
1. Cultural Significance: One of the favorite pastimes of mummers, especially around New Year’s, is to play video and audio recordings of previous years. They talk about what worked and didn’t and, more importantly, their memories of the event. I’ve seen guys post trivia clips online asking, “What band and year” and then argue the answer for days. In the film, Charlie tells Jack about a real photo he has of his dad from the 1954 parade. One of the first things he notes is the theme: The Bells of St. Mary.
Right now, the film works as a cultural document. When watching the Edwin Porter film, we can see what real firefighters on horse drawn carriages looked like in action at the turn of the century. Forty years from now, a new generation of mummers can watch this movie their dads were in and see a real “behind the scenes” as SPSB prepares for the 2005 parade. If we replace the music that gets lost.
2. Educational Value: Obviously, the film is fiction and the mummers’ story acts as a backdrop to Jack and Kat’s parents’ divorce. Yet one of the incredible things about playing the film around the country has been introducing a 200 year old Philly folk tradition to new audiences. Half of each Q and A has been filled with excited questions about Mummery and the history involved. As we plan for distribution, we find ourselves with a huge opportunity to bring Mummery to a wide audience. Of course, music is an essential part of this - the authentic string band sound that lives in South Philadelphia.
3. Commentary and Counter-Argument: While the Mummers are well known in Philadelphia, there are many misconceptions in place. When I explain the film to folks from Philly, I’m often surprised by people’s view of Mummery - often thinking of them as guys who get drunk and stumble up the street. It’s a shame, and has overshadowed the value of the tradition. I find myself countering that the string bands work 364 days and spend up to $100,000 to put on a show for the city, and take that very seriously. If any string band member showed up hammered they would be sitting that year out - there are heavy props and sets involved, and they rehearse their drills for months. I’m hoping that the film can bring a new appreciation to what these men and women do in their home town.
We’re currently working with lawyers to determine whether these documentary sequences can be covered under Fair Use. Because of the above, I feel very strongly that they will. Once we have definitive answers, I’ll follow up. In the meanwhile, be sure to consult a lawyer with issues of your own.
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Thanks for sharing this Tom, my project is a bit of of
a doc/fiction hybrid, good to get some thoughts on
this part of the production.