Fair Use and the FBI: How Filmmakers Uncovered White House Super 8 Movies Without Going to Jail
The filmmakers behind the new, entirely found-footage documentary Our Nixon weave an eclectic portrait of one of the most peculiar American Presidents and best Futurama talking heads ever: Richard Nixon. This doc is no historical snooze-fest, but an "Anti-Nixon-Film Film" revealing never-before-seen private Super 8 movies filmed by Nixon's youthful White House Aides. (The contemporary version might be like stumbling onto Malia Obama's iPhone with two years of Vine videos that had never been uploaded.) While waiting for a delayed flight to the SXSW film festival, Producer Brian L. Frye sat down with NFS to give us insight about how they pulled off the film, from before-and-after 4k scans, to standing up for your fair use rights as a filmmaker.
NFS: Correct me if this is wrong, but the Super 8 movies we see in Our Nixon were basically sitting in a vault for about 40 years before you got to them?
BLF: Yes, basically what happened was that three of Nixon’s aides -- H.R. Haldeman, John Erlichman, and Dwight Chapin -- were shooting lots and lots of rolls of footage from amateur movie cameras. They were getting film from the U.S. Naval Photographic Center, along with free processing and printing of the super 8 films that they shot, and they would have copies made of everything they shot as well. When John Erlichman was being investigated for Watergate, the FBI confiscated the entire contents of his office pursuant to the subpoena, and among the contents of Erlichman’s office were the copies of some, or all, of (we just don’t know really) the rolls of footage that Haldeman, Erlichman, and Chapin had made. I think it was in 1974, shortly after Nixon resigned, Congress passed a statue saying that all of the materials created by the Nixon White House -- as in, anything created by Nixon or Nixon’s staff -- were designated as the property of the US government. Previous to that, everything created by the White House had been considered the personal property of the President. They ultimately went to the National Archives, and they just sat there for a really long time.
NFS: So when did you and Our Nixon Director Penny Lane find out about the Super 8 movies and decide you were going to make your first feature film out of them?
BLF: In about 2000, Bill Brand, a film professor at Hampshire college, who also has kind of a side business preserving film, was hired to make 16mm internegative blow-ups of the super 8 film that were in a collection for preservation. I was subbing for him at Hampshire at the time, and he told me about the project and showed me a reel of films and I was like “These are really cool! I wish I could get them.” You know of course, getting prints can be really expensive and there weren’t any video transfers that existed, just the 16mm inter-negatives that he was making. It was kind of a pie in the sky I couldn’t afford to do anything with it.
I would talk about it every once in a while, so when I met Penny in 2008, I told her about it and she was like, “Oh wow! Well you know, either we have to collaborate on this film, or I’m gonna make it myself.” And she talked about it and I was like, oh all right, why not! So that kind of prompted me to spring for the initial video transfers, which I think cost around $15,000 or so. I paid to have all 500 reels about (40 hours or something) transferred by Colorlab, and it cost me a fortune.
NFS: At that point you were working with copies of the Super 8 movies, however the Super 8 in the finished film looks pristine. What extent of restoration, if any, did the footage go through?
BLF: Original Super 8 film is relatively high resolution, it actually looks quite good: a little grainy, but the sharpness is good if the camera was focused well. But Super 8 doesn’t print well. Copies of Super 8 film, like Super 8 contact prints, just look like shit, they really do. They’re really fuzzy, they blow out really fast, its reversal-reversal printing. Then condensed to a second generation, everything we were working with was just kind of lo-fi, fuzzy, grainy, high contrast, washed-out images. We kind of accepted it -- as far as we knew, it was all that existed. So we worked with that material for a long time. We actually finished the initial cut of the film using just those prints of the material, and it was then that we discovered Haldeman’s family had just donated all of his original Super 8 films to the Nixon library. We were really excited. We went back and got the original Super 8 films and had them transferred by Jeff Kreines on a Kinetta machine that he has, which is this new format for doing film transfers where you use a high-res digital camera and use the sprocket holes for alignment on the film. He makes 4k scans of super 8 films, and you can do any thing with that. It’s a really cool machine. He actually took his machine, it’s kind of portable you can put it on a desk, and took it to the Nixon library and sat there with the machine in the Nixon library for a week and did a second video transfer of all the original super 8 film. So at this point, the vast bulk of the film is from the original super 8 movies, and it just looks stunning.
Take a peek at this before-and-after clip of Our Nixon's Super 8 material:
NFS: Our Nixon consists entirely of original source material from the time period -- no contemporary interviews, no voice overs, and so on. Can you talk about the philosophy behind a found footage doc, at least in the case of this film?
BLF: There’s one obvious reason why we didn’t create interviews ourselves, which is that the two primary characters Erlichman and Haldeman were both dead. So they were not available to be interviewed, unfortunately. I think if they had been, it would have been hard to not at least try to talk to them. The only kind of questions people were asking them were “Why did you do such bad things, tell us more about the conspiracy, why is Nixon paranoid and evil…” that kind of stuff. It’s a very kind of (understandably) single-minded direction of interview. But no one ever asked them questions like, “So why were you excited to work for president Nixon?” or “What does the Nixon presidency mean to you?” It would have been helpful to have answers to questions like that to provide us with more about their characters.
I think keeping it archival was a really conscious choice though. We didn’t want to editorialize too much. From a filmmakers prospective, it can be really interesting to stick to material from period that you’re talking about. Limiting yourself to the primary materials forces you to come to terms, not with the conventional wisdom about a historical moment or historical period, but with what people actually thought was important at the time -- which isn’t always how we remember it. You remember history through the lens of what turned out being important, but sometimes that is hard to identify at the time. I think that focusing on what people were actually talking about during the Nixon presidency, what the concerns were, and how opinions of the presidency changed over time, helped give the film a richer texture.
NFS: There’s a combination of public domain footage, but also fair use claims in Our Nixon, and you’re a filmmaker who happens to also be a law professor. Would you recommend taking on this kind of project to the average filmmaker?
BLF: We were really fortunate in the case of this particular movie in that the home movies that we were using -- because they had been effectively confiscated by the US government -- became the property of the government, and thus were in the public domain.
Now when it came to the other archival material, that was a whole other question. The vast majority of the news footage and other archival is not in the public domain and we relied primarily on Fair Use claims. And really, it’s because we’re using material that’s talking about political issues. It’s commentary on the politics of the day. We’re using relatively small clips, and we’re using them in a way that comments on the historical record and on how history was written at the time. Those are sort of the core areas that are protected by Fair Use. People are becoming more comfortable with the idea that they don’t have to necessarily license everything that’s archival, that there are first amendment protections to use archival material if its done in a way that justifies fair use. I recommend looking at Patricia Aufderheide and Peter Jaszi's book Reclaiming Fair Use: How to Put Balance Back in Copyright which I think provides a really good explanation and provides rubrics that non lawyers can use to understand what Fair Use is and determine whether the use that they intend is in fact protected or not. That said, if you're doing a project that you intend to have some type of commercial release, I strongly recommend consulting with a lawyer.
NFS: So did having Fair Use claims in the film affect your Errors & Omissions insurance?
BLF: We are getting E & O insurance as we speak. I imagine it affects the rate somewhat, because obviously it has an increased risk factor and insurers are going to price that risk factor into what they quote you. But at the end of the day, the cost of paying for E & O insurance, even with a substantial amount of Fair Use, is a pittance compared to what it costs to pay licensing fees for stuff that you don’t actually have to license because its use is protected by Fair Use. So I would strongly encourage filmmakers, especially documentary filmmakers who are making a commentary on politics or popular culture, to be aggressive about Fair Use. There’s really no reason not to be, and economically it’s really in the interest of content producers to not be paying licensing fees that they have no obligation to license in the first place. My feeling is that many people have this idea that they’re kind of breaking the rules or pushing the boundaries, that’s just not true. If the use is protected by fair use, that means that you have no obligation to license that material from someone, they have no business objecting. That is within your first amendment rights. Fair Use is really the copyright law’s way of protecting First Amendment principles. It’s within your constitutional rights to be using that material in that way, and you shouldn’t feel guilty or awkward about it.
NFS: What do you see as some of the future trends for documentary filmmakers with fair use?
BLF: I think that documentary filmmakers are really on the vanguard of vindicating the Fair Use rights that big media producers have successfully bullied people into not exercising. And the reasons for that are multifold, one is I think that because documentary film makers just tend to have better fair use claims because of the nature of the kind of work, because they are making films about the world and about truth and about critical commentary on things. Moreover, because of the nature of how the film industry works there are actually kind of institutional elements that make it more feasible for people to exercise fair use rights.
One big problem with fair use rights generally is that its treated by the court as an affirmative defense rather than a bar to litigation. So if you use something that’s a copyrighted work, the person who owns the work can sue you for infringement and you basically have to assert fair use as an affirmative defense and say yes this is a copyrighted work, yes I copied it but it’s a protected use. That means even though you might win, you still have litigation costs associated with being able to exercise that right and unfortunately most content producers just don’t have the resources to litigate.
In the context of the film industry, in order to get distribution you have to buy E&O insurance. Once E&O insurers realized that their risk of fair use claims was low -- that when things were litigated they could often win, and in many cases recoup attorneys fees -- then they were willing to write these policies. The filmmakers, once they can get a policy covering fair use claims, once they can be insured against the potential for litigation, no longer have to worry about the effect of copyright owners threatening to sue. I can say, "Sue away, I have insurance. If you sue me, I’m not going to have to pay the bill, the insurer's going to pay the bill!" Then all of a sudden the copyright owner is going to think, oh gee, if we sue you we're probably going to lose, and then we're going to bear the litigation costs and we're not going to get any money out of it. And it doesn’t make any sense to sue anymore.
NFS: Do you have any advice you'd be willing to impart to readers who are working on their own independent films right now?
BLF: The only thing I would say is, don’t make boring documentaries.
NFS: Ha, but why not?
BLF: Because there are too many of them already! Do something cool and unusual, because too many people make boring documentaries. Listen to Robert Greene, he is the voice of the new generation of documentary filmmakers, that’s what I would say.
NFS: I can imagine how many Nixon films you had to sort through for this project that might fit into that boring category...
BLF: They’re really among the worst. Anything that’s about politics or about a politically loaded subject, it's like there’s something about making a film like that that causes people to excise the creative elements of their brain. I just find it kind of tragic. Propaganda has never been and will never be interesting, and people should take that to heart. We wanted Our Nixon to be the anti-Nixon film… or rather I should say, the Anti-Nixon-Film Film.
Thank you, Brian!
What do you think about the future of fair use claims for filmmakers? Has anyone had experience being bullied by big media rights holders into not using your first amendment rights? And what are your thoughts on not making boring documentaries?