Waiting for Something

“I’m going to fire somebody in a little while,” the young school superintendent declared. “Do you want to see that?”

In the world of film documentary, the word ‘see’ means ‘video tape,’ and Washington DC Schools Chancellor Michelle Rhee was actually inviting us to run our cameras as she fired one of her employees.

Michelle RheeMy colleagues Jane Renaud and Cat McGrath accepted the invitation on the spot. As Jane recalls, “She told us to come back at a specific time, and so we got a sandwich, returned to her office, set up the equipment, and shot the meeting.”

Jane and Cat had spent the morning with Chancellor Rhee, filming her meetings with parents, and with community groups and principals. Rhee was a dynamo, moving easily from meeting to meeting, and from scene to scene, and always seemingly unaware of the presence of our cameras, including the scene where she fires a school principal.

Our film of that event was broadcast nationally on PBS NewsHour and helped to illuminate the persona of Michelle Rhee as a fearless and determined reformer who puts the interests of children first.

Now an Academy Award-winning filmmaker has inserted the footage into his new feature film, without our permission.
For me it is more than just another spat between filmmakers. It is a matter of principle and respect.

Here’s some background: Early in 2009 Davis Guggenheim reached out to us in an e-mail. He praised our work, and he asked me to call him. I had admired his earlier film, “An Inconvenient Truth,” and I told him so on the phone. We had a pleasant conversation, and he told me he wished to use some of our Rhee footage. He identified the clips he wanted, including the scene where Superintendent Rhee fires the employee. When he asked to buy it, I told him that we had never sold footage before, but at that time we were actually having bit of a financial struggle, so I told Mr. Guggenheim that I might be interested, for the right price.

Rather than discuss terms, we agreed to get back to one another to work out the actual deal. I believed that the footage was worth at least $25,000, which would have been a great help to us at the time. I waited for an offer. Not long afterward his producer called. She offered $5,000.

My immediate reaction was that I was being low-balled, that because his people knew our situation, they expected us to take whatever they offered.

So I said no. Of course, this was a negotiation, and I expected a decent counter-offer, but I also thought that if none came that would also be okay. The truth is, we had long planned to put this footage into a documentary of our own. For me, for us, this was a win-win game.

But then came a bit of stunning news. In mid-January Mr. Guggenheim’s producer called. We are using the footage anyway, she announced, and we want to give you one last chance to take the $5,000. When we did not accept, she then cited the ‘fair use’ doctrine and noted that their film would give Learning Matters credit on screen.

Now, the doctrine of ’fair use’ is ambiguous at best and is very limited for creative works, where qualitatively important work is taken and the use undermines the market or replaces the market for the original–all which are the case in this situation. I believe that Mr. Guggenheim’s attempted purchase of our footage is nothing more than firm confirmation that they knew the ground rules before they went about making their film.

And it is, by all reports, a very powerful film. It was very well received at Sundance, and we understand that Paramount’s Vantage Pictures bought the rights for worldwide distribution. A fall opening is planned.

Well, our lawyer has informed Mr. Guggenheim that we intend to take whatever steps are necessary to protect our property. In turn, Mr. Guggenheim’s attorney has said that ‘fair use’ applies and has warned me not to criticize his client.

But our attorney has been down this road before; in fact, he even argued and won a landmark copyright case before the Supreme Court. Film at eleven!

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