Fair Use or Theft?: Rodney Ascher's 'Room 237' vs. Warner Bros.' 'The Shining'

“Room 237” first screens at the Toronto film festival Thursday, September 13, at the Bloor Hot Docs Cinema.

In 2010, Rodney Ascher went to the Sundance Film Festival with his documentary short “The S From Hell,” which examines a bizarre childhood terror: the 1964 Screen Gems logo and its otherworldly sonic chime. Much of the film is comprised of voiceovers of people recounting their fears with clips from Screen Gems shows like “Bewitched” and “The Flintstones.”

Despite not seeking approval from the studio, Ascher didn’t run into any trouble with the footage. Not only did he believe it was well under the definition of fair use, which permits the use of copyrighted material without permission, it also wasn’t much of an issue: like most short films, it never saw distribution outside the festival circuit and thus wasn’t making money off the material.

READ MORE: The Top 5 Wacky Theories About ‘The Shining’ in New Frontiers Doc ‘Room 237’

That’s not the case for “Room 237,” Ascher’s feature debut. The 102-minute documentary deconstructs hidden meanings in Stanley Kubrick’s 1980 adaptation of Stephen King’s horror novel “The Shining” — mostly by showing sequences from the actual film, a copyrighted work owned by Warner Bros. Since its Sundance debut in January, Ascher’s film has been acquired for distribution by IFC Midnight and snagged slots in the Cannes Film Festival’s Directors’ Fortnight and Toronto film festival’s Vanguard sidebars. It will have an awards-qualifying run at the end of the year followed by a March release.

For this one, Ascher has no choice but to go down the rabbit hole of proving that the footage he’s used falls under fair use, which would prevent him from having to pay hefty licensing fees to WB or being sued for showing the film in theaters.

“Room 237” explores every nuance of Kubrick’s film by unspooling lengthy clips while voiceovers from conspiracy theorists break down outlandish subtexts that range from the Holocaust and the genocide of the American Indian to Kubrick using the film as an admission that he “directed” the Apollo 11 moon landing. It’s a fascinating paean to cinematic obsession, but Ascher did not seek licensing permission through Warner Bros. before the screening at Sundance, declaring the clips fair use. (Neither Warner Bros. nor IFC would comment for this story).

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Fair use is defined as copyrighted material that filmmakers, news gatherers, critics or educators can use for free if they add context to the material — most commonly, a voiceover. But they can only use enough content needed to illustrate sufficiently the point being made.

To better help define fair use for filmmakers, a coalition of professors and filmmaking groups created the Best Practices in Fair Use Doctrine in 2005. Entertainment lawyer Michael C. Donaldson, who helped create the document, points out that films with fair-use content often get distribution without drawing lawsuits — but no one talks about it.

“It has been portrayed as a ‘dirty little secret,’ ” says Donaldson, who represents “Room 237.” (He would not comment on the film for this story.)

For years, filmmakers using unlicensed clips in their films avoided the wrath of cease-and-desist letters by showing their works in museums or playing one-offs at small arthouses and repertories. One film that inspired Ascher was Thom Andersen’s “Los Angeles Plays Itself,” which highlights how the city has been depicted in clips from some 200 films.

“I saw it once a few years ago at the Egyptian and was pretty blown away,” says Ascher, who would not comment on the rights issues concerning his film for this story.

While Andersen’s film has built up cult status since having its premiere at the Toronto International Film Festival in 2003, most of its showings have been in nontheatrical venues; it was recently presented at the Whitney Biennial with other Andersen works.

“I think the fact that there is some legal ambiguity about the question of fair use was a problem in getting the film shown,” says Andersen. “It hasn’t been shown on television anywhere. I would like to see it have some kind of DVD release. Maybe if it was bigger or more famous it would be a bigger issue.”

Insurance companies have become one of the game-changers for fair-use advocates. The 2005 doctrine helped them become more comfortable with providing those kinds of films with errors and omissions insurance, which protects them from lawsuits. Without that policy in place, no distributor will touch a film.

One of the modern trailblazers is Kirby Dick, who invoked the fair-use doctrine for clips in his documentary about the MPAA ratings system, “This Film Is Not Yet Rated.” He’s since used it in two other films, including his recent Sundance audience-award-winning “The Invisible War,” but he says that claiming fair use is an extremely frustrating process.

“Filmmakers agonize through it,” he says, “but going through this approach can save you a lot of money.”

According to Donaldson, clearing the rights for a mere 30-second clip from a studio film can cost between $6,000 and $8,000, an astronomical figure for an independently produced film. He often gets the studio to lower its fee after sending a package complete with a DVD on fair use and examples of litigation over the years. In one instance with a studio last year, he got the fee dropped from $45,000 to $15,000.

This negotiating of fees has been a contentious subject for copyright holders who feel they are being exploited. “This is where I take [Donaldson] to task,” says Cathy Carapella, who handles rights and clearances for Global ImageWorks and speaks on fair-use issues for the nonprofit Association of Commercial Stock Image Licensors. “If it’s fair use, why offer to pay for anything?”

Donaldson deflects that criticism by claiming that he tells fair-use clients that they can either release the film and fight the cease-and-desist letter later if it comes or preserve a relationship with the copyright holder by agreeing upon a fee. “Those decisions are always up to the filmmaker,” he says.

Dick hasn’t yet seen “Room 237,” but after hearing how the footage is used he’s confident Ascher is in the clear. When asked what advice he’d give Ascher as he navigates the waters of fair use, Dick simply says, “Have him call me.”

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