While looking through the ubiquitous end-of-year lists, I stumbled on the wonderful Stay Free!'s post on their favorite stories of 2005. One of those stories was an interview with the producer of "Mad Hot Ballroom" -- a lovely indie documentary made on a shoestring budge -- and how she was able to clear so many copyrighted songs. The entire interview is a fascinating look at how copyright limits documentarians (Clearing 6 seconds of a Rocky ringtone? Halting street filming while Frito Lay trucks pass by? C'mon!!), but it also includes this bit of prescience:

Stay Free!: Were there any scenes you had to cut out of the film because of copyright?

Sewell: When we were down shooting the boys playing foosball, Ronnie yelled out, "Everybody dance now!" Just when I think we've finished the film, someone points out that we have to clear that because it's a "visual vocal cue." So I went back to the publishers, and the first publisher, Spirit, says they'll throw it in with the other things we've cleared if Warner Chappell throws it in. But Warner Chappell said, "Look, we've cut you some nice deals, we can't give this to you." They said this three-second bit would cost $5,000. And since they had Most Favored Nation status it would have raised the cost on similar uses, like the Rocky ring-tone. So I went back to lawyer and said we should keep it in because this should be a poster child for fair use. But he didn't recommend taking on the music industry. Those corporations have too much money for us to play Norma Rae our first time out.

Stay Free!: You guys should have done it and then gone to the EFF if Warner Chappell threatened you. For a clear fair use like this, lawyers are often willing to work pro bono. And the negative publicity would have scared Warner Chappell off.

Sewell: Yeah, I know, but more than anything else, it's the fear factor. That's what's discouraging.

This is cool and sad at the same time. It's neat because EFF did convince Warner Chappell to abandon (and apologize for!) a separate overzealous copyright claim just months later. But the underlying problem is tragic: all too often, creativity is hampered by the rules that are supposed to reward creators. That problem is too big to fix in fits and spurts. It requires changes to the law, not just courageous attorneys who work for free to interpret it. When I see stories like this, it makes me excited to push copyright reform as an election issue this November.