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!

18 Responses to “Waiting for Something”

  1. Steve Buckley 09. Mar, 2010 at 9:31 pm #

    Good for you for standing up for your rights. And good for you for explaining an inconvenient truth about Guggenheim.

  2. Sam Cuddeback 09. Mar, 2010 at 9:32 pm #

    I am sorry that this has happened to Learning Matters, and I am hopeful that your understanding of the issues will prevail. Good luck.

  3. Andrea Grenadier 09. Mar, 2010 at 9:39 pm #

    John, you need to back up on this one — you filmed someone being fired, and they didn’t know it? Did you tell the person that he/she was being filmed? Do you get permission? This seems like a gross violation of privacy to me. Was this also a matter of principle and respect?

  4. Andrea Grenadier 09. Mar, 2010 at 9:42 pm #

    It also seems strange that you made your company’s financial position known to Davis and his producer. This tipping of the hand was perhaps a tactical error on your part; you never let someone know your position before getting closer to what you want — your financial straits shouldn’t ever have entered into your bargaining position, since you never negotiate from a position of weakness — only strength.

  5. Dan Bernstein 09. Mar, 2010 at 11:22 pm #

    I am a big fan of Learning Matters and of John Merrow as a filmmaker. I have purchased three copies of Declining by Degrees and I use segments to promote hard conversations among faculty and staff in higher education settings. I am unsure what I think about this dispute, but it seems to be centered at least as much on money as on principle (the dispute initially was about the price). It does lead me to wonder about the role of journalism and commercial enterprise, including intellectual property. So for example, how much of the money I paid for the three DVDs goes to the University of Arizona, Lute Olsen, Western Kentucky University, or the several teachers whose work is held up for criticism, praise, and scrutiny in the film? How much money would have gone to the fired principal or to Superintendent Rhee if the $25,000 figure had been offered? Who owns the intellectual property in all this work on behalf of student learning, good/bad teaching, and administrative machinations on behalf of institutions? If I were to give an interview to a video journalist, my presumption would be that my ideas and work are visible to the public and I make my case in the public interest. Presumably all interviewees sign some form of release, and perhaps that says they give up their rights, with or without compensation. I can’t tell that from watching any John Merrow films; maybe it is in the fine print at the end. I appreciate greatly the work that is done under the broad heading of Learning Matters, and I presume that the NewsHour provides some compensation to John and Co. in return for providing their reports (that’s why they charge my local stations for airing their program). I want this work to continue, but I am having trouble seeing a clear high ground in this case, given that the segment in question was offered in a free public broadcast. I have no interest in the other filmmaker, and I don’t even know if his is a for-profit operation. If he is also subsisting on grants and donations, not on revenues from the new film, then it seems he is only being uncharitable and stingy, but not perhaps violating the spirit of fair use. The contract for distribution, however, suggests he is working as a for-profit business. I wish there were more information about all of the people involved here and all of the money and all of the intellectual property of the many people whose lives, ideas, and work are being shown for the public benefit. That might make all this easier to resolve for me.

  6. Dan Willingham 10. Mar, 2010 at 7:30 am #

    John, do you see this as part of a larger trend? The ethos among most people I know in their 20s is that intellectual property ought not to exist. When I point out that, for example, downloading a song or a book deprives the author and publisher of profit the response is almost invariably “well, they ought to expect that people are doing to download it.”

    I’m no lawyer but the argument that this case constitutes “fair use” seems laughable.

  7. David Van Taylor 10. Mar, 2010 at 12:42 pm #

    John,
    I’m very involved in the fair use movement, which means I see both sides of the issue quite well.

    For me the crucial missing piece of info here is how much material they wanted to use. That would help determine whether their offer was close to “market value” for this footage, and if not whether your stated price was close to “market value.” In any event I agree they should have kept negotiating before retreating to a take-it-or-leave-it position; but whether they were justified in a fair-use stance could well depend on whether they perceived that the only option you offered them was a usurious one.

    One point of law for your information: within the last couple of years the Federal courts have made it quite clear that asking to license material first is in no way prejudicial to a subsequent fair-use stance. So I don’t think your point about his “attempted purchase” will carry much weight.

    The other key question, much more fundamental than the market-value question, is whether Guggenheim’s use was “transformative.” Did he do something different with your footage, or did he just take it and use it as you had and would have in the future? This is admittedly subjective, and legally speaking he probably has broadish latitude as to what constitutes transformation. But it is the key question now. So I would definitely recommend that you see Waiting for Superman to begin to form your own opinion on that. Hopefully you won’t have to plunk down $10 for a ticket to see it, since I’m sure that would be galling.

    Anyone interested in understanding the state of the art re Fair Use and documentary should visit http://www.centerforsocialmedia.org, which has spearheaded the revitalization of fair use as a corrective to the excessive grip large copyright holders have had on intellectual property in recent decades. John, you should know about this—not only as someone on, in your view, the wrong end of the new fair use, but also as a documentarian who may well want to use fair use for your own filmmaking ends.

    If you want to discuss this offline, call or email me. I’d be happy to discuss this in a dispassionate manner to help you sort out your options here. I definitely understand how you feel misused here, and it seems like a tricky/sticky case all around.

  8. Pat Aufderheide 10. Mar, 2010 at 12:55 pm #

    This dispute is important for anyone who makes work that requires quoting copyrighted work (which includes all documentary filmmakers, including Merrow and Guggenheim). Fair use is a case by case decision, in which context is everything, so Merrow’s description is not much help in deciding the legitimacy of fair use in Guggenheim’s film. However, fair use is not a small or highly limited part of copyright. It is a strong balancing feature to owners’ limited monopoly, and an important one for filmmakers (and other creators) to understand. The Documentary Filmmakers’ Statement of Best Practices in Fair Use (http://www.centerforsocialmedia.org/resources/publications/statement_of_best_practices_in_fair_use/) provides a clear, uncomplicated and highly reliable way to make fair use calculations. More material on fair use is available at http://www.centerforsocialmedia.org/resources/fair_use/. These Best Practices codes have been used for years to calculate clearances and get errors and omissions insurance. It may be helpful for people to consult both the Doc Filmmakers’ Statement and Guggenheim’s film before drawing conclusions.

  9. John Spencer 10. Mar, 2010 at 1:48 pm #

    Kudos to you for fighting for the rights of intellectual property. However, it seems a bit hypocritical that tax payers must pay for public broadcasting creations and then have no sense of ownership or fair use of it.

    Furthermore, I am jarred by your comment, “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.” She is a media hound “reformer” with little evidence to prove that her reforms are successful.

    Incidentally, did the principal agree to the terms of being video taped?

    The mere fact that she would want people to video tape her taking away the livelihood of a person demonstrates that she is more interested in media than in helping humanity.

  10. John Merrow 10. Mar, 2010 at 2:05 pm #

    Thank you for your interest. I will try to respond to all the comments:

    Andrea Grenadier and John Spencer: The principal did agree when the Chancellor informed him/her that we were videotaping.

    Andrea: you are right about negotiations. I was naive. Big mistake on my part.

    Dan: we get releases with children and often but not always with adults. We always ask if we can interview them and make it clear that it’s not live, they can stop anytime, they can redo an answer if they wish, et cetera.

    We are a non-profit organization, dependent on support from Foundations and individuals, for the most part. In 35 years I have never sold footage and obviously regret this experience. The Guggenheim film is a commercial venture intended for theatrical release.

    David: Their initial request was for about 140 seconds, $14,000 by going basic rates. The sequence in question is unique, impossible-to-duplicate, transformative and value-enhancing.

  11. Michael Endicott 10. Mar, 2010 at 5:05 pm #

    Dear John, Your extraordinary commitment to eduction of all kinds is demonstrated here where you are creating a whole new learning experience. And you have put yourself in the camera as well! Good luck and Good on you mate.

  12. Henry Mourad 10. Mar, 2010 at 6:01 pm #

    In the publishing industry, before putting a quotation in print from another publication, permission to do so is required. This must be done even if credit is given to the author being quoted, and I am sure it applies to borrowed media as well.

  13. tod lending 10. Mar, 2010 at 7:00 pm #

    I wonder how Guggenheim would react if the tables were turned and it was Merrow, or some other filmmaker, taking a scene from An Inconvenient Truth to use in a new film without his permission. As a documentary filmmaker I find Guggenheim’s behavior appalling, highly unethical, and I wouldn’t hesitate in taking legal action in order to set the record straight. I support Merrow’s action and wish him the best of luck with his case.

  14. Wynn Hausser 11. Mar, 2010 at 2:45 pm #

    As a retired filmmaker, I’ve been on both sides of this issue and done a fair bit of learning about fair use. I believe you are righteous in this fight, John. Guggenheim should be ashamed. I hope your case gets some publicity – public shaming can be a powerful motivator to do what’s right!

  15. Rosemarie Menager 12. Mar, 2010 at 2:42 pm #

    Ironically, this is a controversial situation and yet our Constitution and Bill of Rights clearly want citizens to profit from their labors and assure property rights. I resonate with your sense of fairness and ownership. Having written several books on Plagiarism, it’s been a pursuit of mine to try to understand rights and ownership in educational settings, and in particular media. However, in the case you’ve described, from a practical standpoint, I wonder if your time spent and cost of attorney’s fees etc, may outweigh any benefit gained from pursuit of financial compensation? You still own the rights to your work and can publish as you see fit. In some ways being able to be credited for the footage could have benefit in marketing and attracting additional sponsorship. My own assessment is I think the time and money spent is better put to your next creative endeavor.

  16. Susan Graham 23. Mar, 2010 at 4:50 pm #

    I find it ironic that the debate is about fair use than about fair journalistic practice. It’s not a particularly noble piece of reporting from my perspective.

    “Would you like to film me firing someone?” seems at best self-serving and insensitive and at worst unethical and cruel. How will seeing a principal being fired provide insight into school improvement?

    The excerpt presents Rhee saying “The bottom line is I don’t believe you are going to be the leader who is going to take this school in the direction we are going and have the highest expectation for the kids. I’m terminating your principalship now.”

    While the viewer is given the opportunity to see the Chancellor fire someone, the segment provides little information to illuminate the reasons that under-gird the decision to terminate this particular principal. There is no data provided to support the decision. The “direction we are going” is not specified nor is there any criteria for “highest expectations” for students would be. The viewer is only given access to a broad idea of what Chancellor “believes” about the principal’s performance. Accountability is a fine thing, but it must be grounded in specific and measurable performance data.

    Voting people off the island is a popular format for low cost reality TV entertainment, but one would hope for a little less drama and a little more thoughtful and information from PBS NewsHour when addressing the the complex problem of educating our children who face so many barriers from society and the system.

    As a teacher it is disheartening that this discussion gives the impression that the important part of the controversy is ownership of this principal’s televised dismissal. It seems that the education community would be better served by directing the resources and effort into determining whether the dismissal of this principal has resulted in improvement in student learning. After all, Learning Matters……Doesn’t it?

  17. Glenn Marcus 31. Aug, 2010 at 10:49 pm #

    John -

    you mentioned in your note of Aug. 31 that the situation with Guggenheim has been
    resolved.

    Can you share with us something about that resolution?

    btw – your review of WAITING FOR SUPERMAN – very thoughtful and stimulating!

    ps – just saw your NewsHour piece on DC – nicely done, as always!

  18. Robert D. Skeels 18. Mar, 2012 at 3:03 pm #

    It’s discouraging to know that the slick, mendacious hipster, Davis Guggenheim, stole footage to make his Philip Anschutz backed privatization film. Since the entire ALEC backed charter school movement is about stealing from the public commons to enrich private interests, Guggenheim’s actions on behalf of the lucrative charter industry aren’t too surprising.

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