FAIR USE OF COPYRIGHTED MATERIAL IN DOCUMENTARIES AND COMMENTARIES
Hi, my name is Justin Sterling.
I am an Attorney and the Founder of The Sterling Firm, A Professional Law Corporation.
We are speaking about the Fair Use of Copyrighted Material in Non-Fiction Works, such as Documentaries
and Commentaries.
FAIR USE, INSURANCE, LICENSES
What is fair use?
Fair Use is a doctrine for determining when a person could use another�s work in their
own work without permission.
The factors for determining Fair Use have been laid out in Section 107 of the Copyright
Act.
The Courts apply the Fair Use doctrine on a case-by-case basis based on whether or not
it is fair in the given situation.
For many non-fiction works the footage that is necessary is not available without applying
the Fair Use doctrine.
For this reason, when creating documentaries and other non-fiction works, such as commentaries
and critiques, it is very important to obtain Errors and Omissions Insurance.
E&O Insurance covers your company, or you individually, for errors in the production
that you may make.
E&O provides you protection in the case that a mistake happens.
It is similar to malpractice insurance for attorneys or professional liability insurance
for accountants, architects, and engineers.
The best time to purchase the E&O Insurance is before the risk is taken.
The policy language should be reviewed by an attorney.
Make sure the production is insured.
It is a good practice to at least attempt to obtain a license from the copyright owner
to use the copyrighted material.
In the legal capacity, a license is another way to say �permission.� As the copyright
owner, they are also the holder of exclusive rights, including the right to use the copyrighted
work.
Permission can be granted for any limited purpose of use of the copyrighted work.
Permission can be granted for a price and fee.
Many times, creators of many works, images, and films, will not give permission for their
work to be used by others or they will want an expensive cost for licensing the use of
their work.
Particularly, this cripples the creativity of documentaries, because it increases the
burdens of time and money in licensing film footage clips, music, and photos.
Documentaries largely rely on others� works because it properly demonstrates certain points
cinematically.
Unless they can obtain permission by the copyright owners, documentaries are severely hindered.
DOCUMENTARY FILMMAKERS� STATEMENT OF BEST PRACTICES IN FAIR USE
To better help and assist documentarians, American University conducted studies and
a report was issued entitled Documentary Filmmakers� Statement of Best Practices in Fair Use.
This is an essential resource for every documentarian.
The Statement makes clear what documentary filmmakers currently regard as reasonable
application of the copyright Fair Use doctrine and discusses the four classes of situations
where Fair Use may apply.
If you are interested in obtaining a copy of the Statement, please contact The Sterling
Firm by emailing info@thesterlingfirm.com.
The first class of situations is when the documentarian is �employing copyrighted
material as the object of social, political, or cultural critique.� In this situation,
the use of the copyrighted work is for critical analysis.
For example, a documentarian may use quoted material as an illustration of its critique.
Criticism is at the core of the First Amendment Freedom of Speech, and Fair Use of others�
creative work is appropriate in this situation so long as the documentarian is analyzing
or commenting on the work.
The way the documentarian may express commentary can differ, and it may be extensive or slight.
However, the use of the copyrighted work should not be so extensive or pervasive so that it
becomes the main attraction of the new work and is no longer a function of the documentarian�s
critique.
Simply put, the copyrighted material cannot take the spotlight away from the commentary
itself.
The second class of situations is when the documentarian is �quoting copyrighted works
of popular culture to illustrate an argument or point.� In this situation, the copyrighted
work is quoted because it illustrates an argument.
The documentarian is not using the work as a critique but to evidence an argument that
the documentarian is developing.
The copyrighted work is being used for a different purpose than why it was originally created.
However, it is important that the documentarian attribute the work properly and use quotations
and cite sources.
Once again, it is important that the quotation is not used any longer than necessary and
not being used merely as a way to save costs from creating original content and footage.
The third class of situations is when the documentarian is �capturing copyrighted
media content in the process of filming something else.� Sounds and images are captured during
filming, such as from posters, radio, and televisions playing in the background.
The copyrighted work is incidentally captured and it is permissible to use it so long as
it is not pervasive.
However, the content must not have been requested and it must be properly attributed and not
exploited in its own right.
The content captured must not be the primary focus of the new work and incidental music
must not be a substitute for a sound track.
The fourth class of situations is when the documentarian is �using copyrighted material
in a historical sequence.� That is, the documentarian uses the copyrighted work to
tell a historical story or to make a historical point.
For example, a documentarian may use words that were spoken during particular events
and music that was connected with the particular events, in addition to photographs and film
footage of particular events.
These works are many times available to be licensed for reasonable prices, but sometimes
it may be difficult.
However, the copyrighted material may still be able to be used based on Fair Use if the
project is not centrally based on the copyrighted material, and the work used is only illustrative
and not used extensively.
The copyright owner must be identified if the work is used in this type of situation.
SUMMARY OF FAIR USE DOCTRINE
To summarize, when using others� copyrighted work it is best to follow the principles of
fairness and reasonableness.
It is not appropriate to use another creator�s work extensively without permission.
It should also be noted that Fair Use does not need to be solely used for educational
purposes.
A new creation can be for commercial advantage and for profit.
Moreover, because efforts to obtain a license from the copyright owner was not successfully
obtained does not have any effect on whether the Fair Use doctrine will apply to the situation
at hand.
Even so, evidence of your efforts to obtain a license shows your good faith in the process
and can be very persuasive in arguing Fair Use of another�s copyrighted material.
When creating a documentary or commentary, footage of another�s copyrighted work will
have to be used and reviewed in order to not be pervasive or more extensive than necessary
so that Fair Use can be applied.
Again, this is whey E&O Insurance is important to have.
It is appropriate to attempt to license the work for a fee, and to inform the copyright
owner that alternatively the work can be used for free by way of Fair Use.
When negotiating with copyright owners, it is appropriate to have an attorney correspond
and educate the parties on Fair Use.
Fair Use is an equitable principle and the Courts apply it on a case-by-case basis.
There is no bright-line rule and all factors must be considered in every given factual
situation.
For each situation, reasonable minds may differ, and this is why it is good to have a knowledgeable
informed attorney working for your interests.
WHEN IS IT SAFE TO APPLY FAIR USE
It is important to know when Fair Use can safely be applied and know when it is okay
to not have permission during production of a project.
Again, there is no bright-line rule and the facts are often gray.
However, the Courts have given numerous opinions and it can be safe to say that Fair Use applies
when all the following conditions are satisfied:
1.
The copyrighted material only illustrates or supports a point that the creator is making
in the new work � it is not the primary focus;
2.
The new creator of the new work only uses the copyrighted work as much as necessary
� it is not extensive or pervasive; and
3.
The connection between the copyrighted work used and the purpose of why it is being used
is obvious to the average viewer in the intended audience of the new work.
If any of these conditions are absent, then it is not considered a safe application of
Fair Use.
The situation is grey and open to argument.
The use of the copyrighted work still may be considered to be Fair Use.
The application depends on the purpose of why the copyrighted material is being used.
The copyrighted work must be used for a different purpose than why the work was originally created.
And the amount of the copyrighted work used must only be as much as reasonably appropriate.
GIVING CREDIT
Fair Use of another�s copyrighted work is part of your First Amendment Right to Freedom
of Speech, Freedom of Expression, Freedom to Comment, and Freedom to Critique.
However, credit needs to be given to the sources of your content.
Many creators give credit by including the source during the course of the production
when the copyrighted material is used.
Credit is then again given at the end roll.
It is important to not be deceptive and misleading � do not say things like �allowed by�,
�permitted to use by�, or most obviously �license from� the original copyright
owner.
That is misleading because obviously a license was not obtained and the work is being used
pursuant to Fair Use.
Giving credit is also very important if the new work is being distributed outside the
United States.
Many foreign countries require by law that attribution be given.
Right to attribution is part of the exclusive rights of a copyright owner in many foreign
countries.
If credit is not given, it is actually considered an infringement of the copyright.
In this regard, it is important for documentarians to properly give credit by also including
director and writer of a particular copyrighted work even though they may not both be the
copyrighted owners.
This is required by law in many foreign countries and giving proper credit is an absolute necessary
to claim Fair Use of another�s copyrighted material in other foreign countries.
Now that we�ve covered the application of the Fair Use doctrine in non-fiction documentaries
and commentary projects, you can be more aware of what is required.
However, again, it is always better to be safe and attempt to get permission and obtain
a license for use of the copyrighted material � this shows good faith on your part.
Stay tuned for more useful information!
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