donaldson + callif pave the way for a more vibrant independent filmmaking industry after securing landmark ruling that broadens dmca exemptions
— Ruling allows fictional filmmakers to use footage that was previously unavailable to them —
WASHINGTON, D.C. – After giving careful consideration to arguments made by partners Michael Donaldson and Chris Perez of Donaldson + Callif, and UC Irvine professor Jack Lerner, in a ruling that will have a major impact on the entertainment industry, the U.S. Copyright Office and Library of Congress has granted independent filmmakers who produce fictional and narrative films free rein to use fair use materials. Previously, this right was limited to only independent filmmakers who made non-fiction narrative films.
The Los Angeles based law firm, which represents independent producers of film, television and web-based content, and Lerner, Director of the Intellectual Property, Arts and Technology Clinic at UC Irvine, Irvine School of Law, secured the monumental win.
As a result of the ruling, broader exemptions were added to Digital Millennium Copyright Act (DMCA), expanding the current exemptions for documentary films to include fictional films (e.g. narrative) so that fictional filmmakers may also use clips from DVDs, Blu-Rays, and streaming services “where the clip is used for parody or its biographical or historically significant nature.”
“This is huge for the independent film industry,” said Donaldson. “The use of Fair Use material by narrative filmmakers has exponentially increased to the point where expanding the exemption to fiction films was absolutely necessary, and I’m immensely overjoyed that we were able to establish that at the hearings earlier this year and obtain a favorable ruling granting broader exemptions.”

 

Thanks to Donaldson, Perez and Lerner appealing to the U.S. Copyright Office for broader exemptions to the DMCA over the past decade, documentary filmmakers have been allowed to rip DVDs, Blu-rays and streaming services for the purpose of using short segments of other films in their documentaries for criticism and comment. Their requests to extend these rights to include fictional films were denied in 2012 and 2015 for lack of sufficient evidence.
However, in their representation of Film Independent, the International Documentary Association, Kartemquin Educational Films and Women in Film and Video, the Center for Independent Documentary at a hearing held in Washington, D.C. on March 28, 2018, they successfully argued the need for the existing exemption be expanded to include fictional films.
Such hearings before the U.S. Copyright Office are held every three years under the DMCA to carve out exceptions to the criminal liability imposed by the DMCA for ripping any copyright material protected by various digital controls. The ruling will be effective until the next round of hearings under the DMCA in 2021.
This exemption to the DMCA is based on the copyright concept of the Fair Use Doctrine, which sets a limitation on the general right of a copyright holder to control the copying of any material protected by said copyright. There are several factors that the court must consider to determine whether any given use of material falls within the Fair Use Doctrine, and if it does, there is no need for the filmmaker to ask permission or make a payment to the copyright owner. This exemption to the DMCA is more limited than the general Fair Use Doctrine, but broad enough to cover the vast majority of uses that a narrative filmmaker would desire to make.
Lerner was assisted by Lauren Wertheimer, Shaia Araghi and Cristen Fletcher. Also present to argue the case and answer questions were Josh Welch, president of film Independent and Jim Morrissette of Kartemquin Films.
The 85-page Final Ruling from the U.S. Copyright Office and Library of Congress was published on October 26, 2018.