[Frameworks] High-definition frame grabs

[Dave Tetzlaff]

> My concern in the matter of film stills is not making money, but having the films reasonably well represented.  

This is kind of a moot point for images used to illustration a point in an academic essay published in a journal or book. They will appear as a halftone with a max screen of maybe 105 lpi. A still export from a DVD will be good enough for that, and having a better source image likely won't improve on what is a very crude printing technique. Esaay authors have no control over the reproduction methods used by a press.

> I'm sure others would feel likewise about their films.

Chuck already noted there are plenty of exceptions, but let's say "having the films reasonably well represented" was all any rights-holder cared about. Even such an apparently innocuous and proper principle is open to a wide variety of interpretations and could open "a can of worms" that stops publication dead in its tracks. What if a rights-holder would demand calibrated color images printed on coated paper for an essay to appear in something like the old print version of Jump Cut?

> an image to illustrate a point isn’t “plagiarism”.  But the other reasons are more then good enough to ask permission from the artist. 

Nope. The problem is the whole concept of 'permission' as opposed to say 'cooperation', 'agreement', 'approval' etc.

You have the absolute right to employ visual quotation under Fair Use guidelines, a right copyright-holders have been trying to deny or limit for decades, and you should NEVER concede any limit to that right by even suggesting PERMISSION is required. 

Without getting into all the nitty-gritty details, Chuck was right that even making an inquiry about permission puts an author into a potentially dicey legal position. Is this going to happen most of the time? No. Is it an unacceptable risk? Yes.

But the issue goes beyond the individual author, and the individual rights holder. Asking for permission is a tacit admission that copyright-owners have rights they don't have, reproduces misconceptions and adds ideological support to bad practices.

But, again, I'm just talking about PERMISSION. Showing due respect to artists, working with them (or their representatives) to find the most representative or appropriate examples, to get the best reproductions possible, paying reasonable fees for assistance, etc. etc. are all outside of that question. They are matters of "How should you do it?" not "Are you allowed to do it?" 

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To elaborate on the above:

Once artists present their work to the public, they have no moral right to exercise any control over how anyone chooses to express response to it, and in the U.S., Fair Use law is meant to enable the generation of new works (scholarly or otherwise) that continue a 'conversation' which any previous work may have entered, by liberal use of quotation. 

For example, First Amendment theory calls for "no prior restraint" on speech, with a very few number of exceptions (e.g. "clear and present danger"...). The law only provides mechanisms for punishment of those who abuse the privileges of free expression. 

In practice, though, the history of copyright law shows a long and steady campaign of rights-holders successfully gaining more and more control over 'conversations' with new works via a wide variety of means, and academics especially being more and more impinged in using visual references in discussing visual works. Scholars, educators, and artists have had to fight tooth and nail for every inch of fair use against this steady erosion, and it's only quite recently that they have been able to stem the tide, and gain back a bit of ground. Against this background, asking permission of anyone for anything is ideologically regressive, and frankly irresponsible.

HOWEVER, that doesn't mean that in a domain like experimental film scholars and artists must be irrevocably hostile to or uncooperative with one another. Marilyn has every right to request that Brakhage films be "reasonably well represented" in any form of quotation, to whatever standards she sees fit, and to condemn any use that fails to meet her criteria. Scholars can, and should, make inquiries about such things. As Pip notes, the rights-holder may be able and willing to provide better-quality sources than a frame grab from an SD DVD. A scholar might even have reason to seek approval or endorsement of quotations, which is quite different from asking for permission/authorization.

If Marilyn deems it appropriate to charge 'small' fees that go to Fred for his labor in providing "high quality images to represent the films", that seems fair, but her 'small' could be a struggling PhD student or fan-blogger's bridge-to-far, and she has no right to exclude their ability to participate in discourse around the films by using any fee, or a demand for any aspect of reproduction, as a gateway obstruction. 

I would suggest that any rights-holder whose only interest is having the work "reasonably well-represented" should: First: Make it clear that (for U.S based folks, anyway) permission is neither required nor expected, but non-binding consultation is available, welcome, encouraged, requested.
Second: Place any fees for assistance in providing reproductions (of any quality level) on a sliding scale, based on the resources of the party making a request. 

I would suggest, too, that conscientious and artist-supportive scholars/critics/etc. ought to play that way whether the right-holder invites it or not. That is, make polite inquiries to the effect of, 'I'm going to be using frame stills from [X] in my essay for [A], and I seek your council in how to best represent the work.' This might go beyond technical matters. An author might be thinking of using image [B] to illustrate concept [C], and an artist might reply, 'well, even though I think your concept is BS, it seems to me image [N] would be a better example' They also ought to make a reasonable effort to obtain some budget for 'small' service fees, appropriate to their rung on the ladder of resource access, and be pro-active in offering to pay what they can, if in fact they can pay anything. 

(Note: Just because someone may be affiliated with a University that has plenty of moolah, doesn't mean they can get their hands on even a dime of it for any given purpose...)