DMCA Filmmakers Exemption Expanded

Digital Millennium Copyright Act (DMCA) exemptions aren't just for documentary filmmakers anymore. The U.S. Copyright Office and Library of Congress has broadened a DMCA exemption to now allow more filmmakers to circumvent anti-copying technology and rip short video clips for purposes of commentary and criticism.

The DMCA criminalizes the hacking of copyrighted books, movies, video games and computer software. But every three years the Copyright Office updates a list of exemptions for legitimate non-infringing uses, such as “jailbreaking” an iPhone to add third-party software.

“This is huge for the independent film industry,” said Michael Donaldson, an attorney who argued for expanding the filmmaker exemption before the Copyright Office, in a written statement. “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.”

Donaldson + Callif partner Chris Perez says that the law firm has been working on broadening the exemption since 2012. They were helped by a boom in dramatic films that use actors to tell a true story, such as the 2014 Cesar Chavez biopic. Many such films have been adding short, historical video clips to underscore the truth of the narrative.

“It's been a long time coming,” Perez says. During previous attempts to expand the exemption, “we just didn't have as many stories to tell the Copyright Office.” The Beverly Hills, CA-based Donaldson + Callif handles a range of transactions for filmmakers and production companies, including IP rights clearances. They teamed with Professor Jack Lerner, director of the Intellectual Property, Arts and Technology Clinic at University of California — Irvine, in their presentation to the Copyright Office.

The new rule shifts the emphasis from the type of film to the purpose of the clip. Only clips used for parody or their “biographical or historically significant nature” are entitled to the exemption. The exemption is premised on the fair use defense to copyright infringement.

Perez says limiting the exemption to documentary films was problematic in part because there's no universally agreed-upon definition of what a documentary is. The new rule is “not perfect in our eyes,” he said, “but it covers a lot more filmmakers than it did before.”

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Scott Graham covers intellectual property and the U.S. Court of Appeals for the Federal Circuit for ALM, the parent company of Entertainment Law & Finance. He can be reached at [email protected].