How to Make a Movie Called “Copyright Criminals” Without Going to Copyright Jail

Back in January, prior to its debut on PBS, I wrote about a new documentary called “Copyright Criminals,” which I had seen at the Future of Music Policy Summit in October 2009. “Copyright Criminals” examines the moral, creative and legal dimensions of sampling, focusing in particular on the ways that legal restraints on sampling have altered the course of hip-hop. Those of you who are big hip-hop fans or copyright mavens may already be familiar with the issues the film addresses, but it’s a great introduction for everyone else.

The film’s soundtrack, which serves to illustrate the issues at hand, is a melange of samples of familiar songs, chopped up and reconstituted in classic hip-hop fashion — the Beatles clashing with the Stones over James Brown loops, for example. We’re not talking about library records, we’re talking songs that would be supremely expensive to clear if clearance were even possible. After the screening, I asked co-producer Kembrew McLeod and his partner, Benjamin Franzen, how they tackled the legal issues surrounding the film’s extensive use of samples. They answered that they had carefully plotted a legal strategy in advance, repeatedly consulting a copyright attorney with regard to fair use of the sampled material and hewing to the guidelines of the Documentary Filmmakers Statement of Best Practices in Fair Use, a publication of the Center for Social Media.

In his new article in the Atlantic, “How to Make a Documentary About Sampling — Legally,” McLeod explains at greater length the difficulty of creating a film like “Copyright Criminals” while staying within the bounds of current copyright law. The filmmakers encountered many obstacles to licensing particular songs, including flat-out refusals. In at least one case, a single rights holder derailed a clearance that several other rights holders were willing to approve. The lack of case law on the boundaries of fair use created extra stress for the filmmakers, who feared the statutory penalties for copyright infringement, which can reach $150,000 per infringing act.

Nonetheless, McLeod and Franzen pressed on with their project, and we are the lucky beneficiaries of their efforts. “Copyright Criminals” is an entertaining and edifying film.

Thanks to Puja Patel of the Village Voice’s Sound of the City blog for forwarding us McLeod’s article.

Upstate New York readers: If you’re interested in sampling issues and in the Syracuse, NY area this Friday, April 9, Syracuse University is hosting a conference called the REPLAY Sound Sampling Symposium. Panelists will include Hank Shocklee of Public Enemy and William Patry of Google. The program will also be Webcasted. Visit http://sampling.syr.edu for more information.