The rise of digital media has made the unauthorized copying of intellectual property easy. That, of course, drives the producers of that material crazy. We all know that the entertainment industry is said to be losing billions of dollars world wide from various sorts of piracy, from the sale of bootleg DVDs in southeast Asia to the downloading of sounds and images from the internet.
Much of this activity is undoubtedly illegal and undoubtedly violates entertainment producers’ copyright. But in trying to stem the tide of piracy, the industry hasn’t just gone after the wrongdoers. It has encouraged Congress to make more and more uses of intellectual property illegal, in the process riding roughshod over the Fair Use provision in the United States Code. A brilliant way to stamp out crime: make more activities into crimes and hence have more criminals to pursue. You’d think they have enough problems just going after the real pirates. But people like educators and scholars who try to use clips from movies in their classes or frame enlargements as illustrations in articles and books were thrown into the general mix of copyright violators.
That happened in 1998, when the Digital Millennium Copyright Act was signed into law by Bill Clinton. It essentially made any copying of visual or sonic material that involved breaking a digital encryption code illegal. All sorts of means exist to break these codes. Programs exist to grab frames from movies on DVD. Fans can post images on their websites (thereby offering the studios free publicity). Professors can import frames into their Powerpoint-based lectures. Scholars can illustrate their articles and books with reasonably high-quality images. The devising of such programs and the activities just mentioned were all illegal under the DMCA.
In the 1970s, when David and I were setting out to write Film Art and our other early books, we faced a similar issue, though at that time the copyright law concerning the use of frame enlargements was far less clear. Film studies was still a young field. Most publications on cinema, whether textbook or scholarly article, used studio-generated publicity photos as illustrations. We reasoned that such images did not reflect what really appeared in the film, since they were still photos taken on the set, often with different poses, lighting, and camera position. They were useless for the sort of close analysis we wanted to do.
Film Art thus became the first introductory film text to use frame enlargements extensively. Our publishers accepted the idea that such illustrations fell under fair use. Other publishers, however, were nervous about the idea. Did reproducing frames violate copyright? Editors weren’t always willing to risk finding out the hard way. Some authors paid large “permissions” fees to reproduce frames. Others gave up and settled for production stills.
Around 1990 I was asked by the Society for Cinema Studies (now the Society for Film and Media Studies) to chair a committee to investigate the validity of Fair Use as applied to film images. “Report of the Ad Hoc Committee of the Society For Cinema Studies, ’Fair Usage Publication of Film Stills’”  (1993). This report established that fair use most probably applied to film frames, and educators and scholars were not violating copyright when they used slides or illustrations photographed from the original film. Several presses changed their policies as a result of the report, no longer requiring their authors to obtain unnecessary permissions for frame reproductions. The use of frame enlargements in scholarly publications spread, and film studies benefited as more authentic and useful images were employed by scholars.
Happy ending, right? Certainly the studios never sued over frame enlargements, before or after the report. In fact, relatively few authors were using frame enlargements. It took special equipment to photograph such frames: expensive camera attachments, color-balanced light sources, and the expertise to use both. Those of us publishing extensively illustrated books on Ozu or Eisenstein weren’t exactly a concern to the film industry. In fact, studio executives probably didn’t know that we existed and wouldn’t care if they had.
Then along came DVDs, which made frame grabbing easy. Scholars who had never bothered to get the special equipment or learn how to photograph film frames suddenly could quickly pull images for use in their publications. The reliance on publicity stills declined further. Frames were everywhere, all presumably covered by the same Fair Use law that 1993 report had opined applied to the reproduction of film frames. Legitimate users of frames had to get around the encryption codes, but like millions of DVD users around the world, most of them were savvy enough to do so.
I’m sure that the DMCA was not envisioned as applying to film scholars seizing frames for their publications or professors using visual examples in classes. Still, the provisions of the act were so broad that suddenly scholars and educators were criminalized for doing what they needed to do to foster knowledge: show clips from DVDs in lectures and use frame enlargements from DVDs in books and articles. They had to get around the studios’ codes that prevented piracy. Many of us went ahead and broke the codes and published DVD-derived illustrations in our books or compiled discs containing clips from films to show in lectures. The studios didn’t seem to care, since to the best of my knowledge no teacher or scholar had ever been prosecuted for violating the DMCA.
Finally the recognition of this ludicrous state of affairs has been partially remedied. The Librarian of Congress, James Billington, himself a fine scholar in the area of Russian and Soviet studies, recommended a series of exemptions to the DMCA . The first one relates to film: “Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.” (“Circumvention” is described as “circumvention of technical measures that control access to copyrighted works.”)
This is specific to classroom situations and only applies to DVDs owned by an educational institution. What if the teacher copies clips from his/her own DVDs to use in class? (All too frequent, given the tight budgets of universities and high schools.) Nevertheless, the general implication of this exemption is that the same Fair Use principle that applied to film clips and frames duplicated from analogue copies of films (i.e., 35mm and 16mm prints) should apply even if the educator or scholar is breaking a code to do that duplication. If clips are OK, why wouldn’t single frames be?
The exemption is a small step in chipping away at the monolithic laws protecting intellectual property that the studios are determined to put in place even when it goes against their own interests. Lectures, articles, and books do not damage the studios’ ability to exploit their own films commercially (one of requirements for Fair Use to apply). Quite the contrary. Film professors show clips and still images that publicize films and possibly inspire students to rent or buy DVDs. Articles and books similarly publicize films, even though their contribution to the attention paid to any given title is minuscule.
Making an exception in the DMCA as originally passed to allow for the educational/scholarly use of digital film images would never have occurred to the studios as they lobbied for this sweeping legislation. Few movers and shakers within the industry know there is such a thing as film scholarship, much less understand what we do. Fortunately people like Billington understand. His recommended exemptions went into force November 27.
So, film educator, the next time you prepare a lecture involving clips, you don’t need to pull the curtains, lock the doors, and glance nervously over your shoulder as you copy a tracking shot from Grand Illusion and another from The Magnificent Ambersons. You are no longer a thief.