Will the ISU Cinema Society Fade to Black?
by John K. Wilson
This article first appeared in the Indy on 14 Feb, 2006

It would be a terrible shame if ISU decides to settle the lawsuit filed by New Yorker Films, and seeks to suspend the ISU Cinema Society or make it impossible for them to continue as a group by imposing public performance fees on them. Under Fair Use, what the ISU Cinema Society did was perfectly legal.

To interpret Fair Use, the law requires a consideration of four factors:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."

Regarding section (3), the ISU Cinema Society showed the entire movies, which is a mark against it. However, under section (1), the Cinema Society is nonprofit educational group as an ISU student organization, and it showed the movies for free, which is a mark for it. The movies it showed were documentary, independent, foreign, and classic films (reflecting its educational purposes), not popular entertainment.

So the decisive factor is section (4): did the ISU Cinema Society affect the market for these films? The answer is, unquestionably, no. The Cinema Society never showed a movie that would have a theatrical release in the area. The Cinema Society never showed a movie shortly after its release on video (except for “Fahrenheit 9-11,” which Michael Moore encouraged to be shown).

The obscure films shown by the ISU Cinema Society have virtually no market in Bloomington-Normal. Although some special events with filmmakers could bring an audience of over 100, the typical showing of a Cinema Society movie had fewer than 10 people watching it.

If anything, ISU Cinema Society promoted these independent films and enhanced their economic value. By purchasing the movies it planned to show, the Cinema Society added to the market. By publicizing the movies it showed, the Cinema Society encouraged people to get the movies even if they couldn’t make it to the showing. By featuring important directors and genres, the Cinema Society enhanced the market for their other films. And by educating students about the value of independent film, the Cinema Society helped to create an audience for years to come for these kinds of movies.

New Yorker Films may not realize the nature of the Cinema Society, and may believe that it can get access to a free supply of money. But if the ISU Cinema Society were compelled to pay public performance fees, it would simply stop showing movies. So New Yorker Films never “lost” any money because of the ISU Cinema Society. What the Cinema Society does is fundamentally different from selling pirated movies (which is plainly illegal) or internet file-sharing (which is borderline).

What the ISU Cinema Society does must also be distinguished from, for example, the University Program Board showing of “Saw II” last week. The showing of “Saw II” is for entertainment, not education (“watch out for serial killers” doesn’t exactly count as an educational message). And the showing came a week before the DVD release of the film, which means it could have had an economic impact. Thus, Fair Use does not apply and the UPB had to pay a public performance fee to show the movie.

ISU Cinema Society’s actions are perfectly legal, and consistent with Fair Use provisions. It is important to note that Fair Use supercedes all copyright laws and any so-called “warnings” that film distributors choose to put on their videos that claim to ban public performances. Imagine if a book publisher puts on the front page of every book it publishes, “No one is allowed to quote from, cite, or read aloud to a group any part of this book.” Because of Fair Use, this statement is null and void. Anyone can quote from a book, cite it, or read it aloud to a group in accordance with fair use. The warnings you see at the start of a movie have no relevance to educational, nonprofit groups like the Cinema Society which show movies in accordance with Fair Use. If censorship is allowed in the false name of copyright law, ISU will lose an important proponent of independent film.