In practice, however, the matter isn't that simple. Because copyright law is so uncertain, and because insurance companies that indemnify films don't much like risk, the practice among auteurs seeking major distribution is to cut any clip for which permission isn't granted - fair use notwithstanding. The costs of defending a fair use right in court - and, more important, the costs if any such defense should fail - make the risk prohibitive for most filmmakers. Defense of fair use could run hundreds of thousands of dollars - several times the budget of a typical documentary. And losing this type of claim could expose the filmmaker to $150,000 in damages for each copyright infringed. In a world in which Fox News sues comedian and author Al Franken for parodying 'fair and balanced,' a cautious director can't be too careful.
Greenwald's struggle demonstrates a more fundamental point. Many are concerned about the ever-expanding reach of copyright law. More are concerned about the ever-increasing concentration of the media. Greenwald's dilemma highlights how the two trends are linked: As media becomes more concentrated, competition to curry favor with politicians only increases. This intensifies during an election cycle. Networks able to signal that they will be 'friendly' - for example, by ensuring that embarrassing moments from interviews won't be made available to others - are more likely to attract candidates for interviews and so on, than networks that don't. Concentration tied to copyright thus gives networks both the motive and the means to protect favored guests.
Media Watch | Politicians in the ABC archive
Not nearly as unorthodox as the ABC's plan to let politicians veto the use of news footage in documentaries.
Robyn Watts tried to convince Media Watch that unless Howard, Ruddock, Reith and Vanstone gave the OK before footage was sold to Judy Rymer �
�the ABC could be exposed to the risk of claims under the Trade Practices Act or pursuant to the tort of Passing Off.
Robyn Watts fax to Media Watch, 23 July 2004
Here's some free legal advice Robyn: that's rubbish.
No one has, no one will rush off to court because some old news clips turn up in a documentary.
Perhaps the ABC could offer its assistance to Iraq's new higher media commission.