In Documentary, Wall of Sound Meets Wall of Law; New York Times, 6/27/10

John Anderson, New York Times; In Documentary, Wall of Sound Meets Wall of Law:

"BETWEEN recording sessions here in 1973, John Lennon called Phil Spector and told him to come back down to the studio. “Someone’s ripped you off, Phil,” Mr. Lennon said. When Mr. Spector arrived, a projector had been set up, a film began to roll, several familiar drumbeats were heard and then, the wail of the Ronettes.

The song was “Be My Baby,” the movie was “Mean Streets,” and no one had told Mr. Spector anything about it.

“I said, ‘Who is this guy Skeezy?’ ” Mr. Spector recalls during “The Agony and the Ecstasy of Phil Spector,” which opens Wednesday at the Film Forum in Manhattan. “I called my lawyers, I said, ‘Kill it!’ ” Martin Scorsese had used his music without permission, and “I never give permission for anything.”

Only Lennon’s intercession stopped Mr. Spector from seeking an injunction that could have pulled the movies out of theaters. They may not have known it at the time, but Mr. Scorsese, Robert De Niro and Harvey Keitel came close to having their careers derailed by Mr. Spector — the creator of rock’s fabled “Wall of Sound,” the Svengali of the ’60s girl groups and the producer of the Beatles’ “Let It Be.”

The anecdote is perhaps the most startling contained in “The Agony and the Ecstasy of Phil Spector,” a documentary by Vikram Jayanti, and not only because it’s being told by a man who, for 50 years, has avoided the news media like the plague. Built around interviews at Mr. Spector’s home during his first murder trial in 2007 — he was convicted in the shooting death of the actress Lana Clarkson after a second trial in 2009 — the film employs a greatest-hits collection of 21 Spector songs, played or performed in their entirety. And it does so without having obtained Mr. Spector’s written permission. Thus the film could become the latest flashpoint in the debate over what’s generally known as fair use, and copyright law. (Fair use refers to the right, under certain circumstances, like criticism, to use copyrighted material without permission. But the exact amount one can legally use remains a murky proposition.)

Mr. Jayanti, however, isn’t expecting any legal trouble, even though Mr. Spector twice sued his (former) friend and lawyer, Robert Shapiro, to reclaim a $1 million retainer and was appeased by Mr. Scorsese only when he promised to pay for future music use.

“Phil wanted the film made, he wanted the music given freely, he was cooperative about making it,” said Mr. Jayanti, who sat with Mr. Spector during most of the 2007 trial in Los Angeles.

Through a spokeswoman, Mr. Spector’s wife, Rachelle, said she hadn’t seen the film and didn’t think her husband had either. (He is serving 19 years to life at the California Substance Abuse Treatment Facility and State Prison in Corcoran.) Mr. Jayanti disagrees. “Of course he’s seen the film,” he said. “We made sure he had a copy. We gave his lawyers copies of the film. And I don’t think if he looked at it in a rational state of mind, he’d have any problem with it. I think it does what he dreamed it would do.” Namely, to rewrite the lead of his obituary: from “convicted murderer” to “musical genius.”

Anthony Wall has produced the documentary program “Arena” for nearly 35 years, out of the BBC offices at Bush House, and it was Mr. Wall who asked Mr. Jayanti to direct the Spector film. They’d previously made “James Ellroy’s Feast of Death” together. Separately Mr. Jayanti has directed films like "Game Over: Kasparov and the Machine" and was an executive producer on “When We Were Kings.”

“Running a program like this, you have your particular heroes or favorites,” Mr. Wall said. “The Top 3 for me were always Dylan, the Beatles and Phil Spector. I thought it would be difficult to get any of them, but that we’d never get Phil, because he has so resolutely refused to even give a newspaper interview. He just doesn’t do it.” The weird thing, Mr. Wall said, was that he had so few expectations, adding, “When Vikram asked me one day whether I’d actually written to him to give him the chance to say no, I hadn’t.”

Mr. Jayanti overnighted a letter to Mr. Spector and got a positive response three days later. Mr. Wall and Mr. Jayanti went to the Spectors’ home in Alhambra, Calif. — where a sign outside reads “Phil Spector’s Pyrenees Castle” — and did two days of interviews. A planned five-day shoot was interrupted by Mr. Spector’s trial preparation; a subsequent gag order on Mr. Spector ended all communication between subject and director. But Mr. Jayanti decided he had everything he needed — except, perhaps, that signed release.

For safety’s sake BBC lawyers looked at a possible fair use defense and decided the film was defensible. “It was an exploratory process that we entered into quite innocently,” Mr. Wall said.
“But what we’re looking at, in terms of it possibly being a precedent, is the law bending to reflect what’s really going on,” he said, meaning the Internet, the global marketplace and disparate views of copyright. “What we need is a new rule book. What it’s about is control, whether the Internet can be controlled, and the way our lives are controlled. It’s been a long time, after all, since ‘Steamboat Willie.’ ”

Mr. Wall’s reference to Walt Disney’s original Mickey Mouse cartoon points up a nettlesome issue in the realm of United States copyright law: Each time the 1928 “Willie” has been poised to enter public domain, Congress has extended copyright protection. But the larger point for rights activists is whether a culture can survive without being able to feed upon itself.

“Can you imagine the original guy who told the story of King Lear?” Mr. Jayanti asked. “What if he had been able to block Shakespeare, who picked up a story that was simply in the air? I’m not saying I’m Shakespeare, or that Phil Spector is doing what Shakespeare did with King Lear, but if we don’t have the ability to harvest and process and sample our own culture, then I think the culture dries up.”

The fair use issue is close to the heart of Patricia Aufderheide, director of the Center for Social Media at American University, which has developed the Code of Best Practices in Fair-Use, a documentary-industry standard. “One of the things that is not O.K. is to use music as soundtrack, for ambience or aesthetic,” Dr. Aufderheide said. But Mr. Jayanti’s argument — that Mr. Spector’s records cannot be appreciated or assessed except in their entirety — “is a nonaesthetic, nonsoundtrack reason,” and is quite plausible, she said.

There’s another side to the issue of course. “Filmmakers pay for actors, they pay for film stock, they pay for electricity,” said Robert Clarida, a partner with Cowan, Liebowitz, Latman, who is representing the recording industry in the continuing file-sharing case Arista Records et al. v. LimeWire. “Why shouldn’t they pay for music?”

Mr. Clarida conceded the merits of fair use in some instances, but said the use of an entire work, like a song, has rarely held up and cited two relatively recent and disparate decisions, one involving Elvis Presley and the other a 1947 performance by the singer Lily Pons, used on the cable program “Classic Arts Showcase.”

Mr. Jayanti said he hopes any discussion of copyright issues doesn’t overwhelm his motivations in making the movie in the first place, namely the celebration of what Mr. Spector achieved before calamity struck, and his directorly obsession with “geniuses under duress.”

“I’ve always wanted to do two documentaries that can’t be done: Napoleon on St. Helena and the trial of Oscar Wilde,” he said. “With Phil, I got to do both.”"

http://www.nytimes.com/2010/06/27/movies/27spector.html