Documentary filmmaking is an intellectual property minefield. The entire undertaking is imperiled by the potential for copyright and trademark infringement. Then there are numerous state law pitfalls such as violating someone’s right of publicity or invading someone’s privacy.

And until recently, documentarians could also run afoul of the Digital Millennium Copyright Act (DMCA) for circumventing the digital locks on DVDs that prevent copying in order to access and incorporate high-quality film clips into their documentaries.

Last week, the Copyright Office made headlines by expressly legalizing the jailbreaking of iPhones. But over the excitement generated by 1337 hax0rs and tech geeks everywhere, you may not have heard the quiet sigh of relief emanating from documentary filmmakers everywhere, as the Copyright Office also finally granted a DMCA exception for documentary filmmaking. (Other sounds that may have resulted from the Copyright Office’s ruling: tittering giggles over the fact that one of the new regulations applies to something called a dongle.)

The Rules of the Game

The new DMCA regulations describe three situations in which circumventing the digital locks on DVDs to copy “short portions of motion pictures into new works for the purpose of criticism or comment” is appropriate: (1) educational uses by college and university professors and by college and university film and media students studies; (2) documentary filmmaking; and (3) noncommercial videos. The new regulations also specify that the person engaging in circumvention must believe and have reasonable grounds to believe “that circumvention is necessary to fulfill the purpose of the use.” In other words, there must be a reasonable determination that other methods (e.g. video capture technology) would be insufficient.

Piracy and Encryption

Hollywood has been paranoid about film piracy for decades. Over the years, we have all treasured the various antipiracy advertisements displayed in movie theatres, on television, and on our DVDs at home. Who could forget Jack Black’s bizarre combination of hip and foul language in an NBC-the-more-you-know-style attempt at demonizing piracy (and/or at demonizing industry hypersensitivity toward piracy)?

Just weird.

Hollywood’s first line of defense against DVD piracy is actually on the DVDs themselves. All Hollywood DVDs are protected by an encryption mechanism known as “Content Scramble System” (CSS, not to be confused with Cansei de Ser Sexy, which, of course, is Portuguese for “Tired of Being Sexy”). This is the technology that enables DVDs to be played on DVD players while preventing other devices (e.g., a computer) from making unauthorized copies of DVDs. And it’s annoying as hell if you are trying to incorporate a high-quality segment of a Hollywood film into a documentary or create a non-commercial video within the boundaries of fair use law.

The Need for the New Regulations

Documentarians frequently make fair uses of copyrighted materials to criticize or comment on them, illustrate a point, create historical sequences, or even capture a scene where the copyrighted material is incidentally included. The first three of these examples are extremely difficult to accomplish if you cannot directly access the source material. Although the new regulations warn that “video capture may suffice in many, and perhaps the vast majority of situations,” they also recognize that “heightened quality” is sometimes “necessary to achieve the desired goal” — an observation which might be as home in a commercial for certain “family planning” products as in a formal copyright regulation.

Additional Limitations

The new regulations apply to “only motion pictures rather than all audio visual works.” In a parenthetical, the regulations specifically point out that “video games” are not included. While this may not be an immediate concern for documentarians, as games continue to incorporate an increasing amount of high-quality video, game companies may also begin utilizing their own version of CSS. When this happens, the law will once again be looking to play catch-up.

But at least the Copyright Office has the dongles taken care of.