Fair Use: Expanding Opportunities for Documentarians

Fair use is the right to use copyrighted material without permission or payment, under some circumstances.

It is a basic part of copyright law in the U.S., but had fallen into disuse because of lack of clarity around what was safe to use.

Since the Documentary Filmmakers’ Statement of Best Practices in Fair Use was issued on November 18, 2005, it has profoundly changed the way documentarians do business.

  • It has lowered clearance costs
  • And it has expanded the range of possible projects and topics.

Insurance Practice

The Fair Use Statement turned around insurance practice.

  • In 2005, no insurer routinely accepted fair use claims.
  • In 2006, some decided to accept claims grounded in the Statement. MediaPro did so with the assurance that the Stanford Fair Use Project would arrange for the costs of litigation in the event of trouble.
  • By 2007, every errors and omissions insurer in the U.S. was routinely accepting fair use claims grounded in the Statement.
  • Today filmmakers routinely get fair use claims insured without added fees.

Law Firm Specialization

Law firms have sprung up that specialize in fair use.

  • Donaldson and Callif, for example, represents a wide range of documentarians.
  • In 2005, not one film Donaldson represented at Sundance had a fair use claim.

In 2010:

Number of Clips Used by Donaldson Clients Pursuant to Fair Use
FILM

FILM CLIPS

MUSIC CLIPS

PHOTOS +

Bhutto

424

0

26

Countdown to Zero

11

1

6

Gasland

16

1

21

Lucky

9

4

13

Waiting for Superman

140

0

4

 

No lawsuits have occurred with this increased growth in use. Two requests for injunctions (removal of the work from the marketplace because there is a substantial reason for a lawsuit to proceed) were denied.

  • In 2007 a Chicago filmmaker, Floyd Webb, posted to YouTube clips and a trailer of a film he was making about Count Dante, a martial arts expert. A leader in the society Count Dante founded sued Webb for using the Count’s image. Webb used the principles and limitations of the Statement, and with the help of lawyer Anthony Falzone and Stanford’s Fair Use Project defended himself. The case was summarily decided for Webb.
  • In a second case, the makers of the 2008 Expelled, a pro-creationist documentary, quoted a John Lennon song, “Imagine.” Yoko Ono sued, and once again the Fair Use Project defended. This request for injunction was also denied.

Fair use is not a rule but a case-by-case analysis. How copyrighted material is used determines whether it is fair use, so context is critical. When judges decide cases, they pay great attention to the actual practices of the communities of practice, for instance documentary filmmakers.

Asserting their shared standards allows documentary filmmakers to do their work knowing what is normal. In the event of litigation, the standards also would help judges understand filmmakers’ working conditions.

The expansion of fair use has not harmed documentarians’ rights as owners, because fair use is a limited right, designed not to impinge unduly on the marketplace.

Rather, it has permitted more work to flourish more easily, releasing work into the marketplace more quickly. It is widely used by large content holders, though they tend to use it very quietly.  

The Takeaway

About the Author

Professor Pat Aufderheide runs the Center for Social Media in the School of Communication at American University. She works on fair use with Prof. Peter Jaszi at American University’s Washington College of Law. Their book, Fair Is Fair: Copyright, Creativity and Fair Use will be published in 2011.

2 comments

  1. David says:

    As I understand the matter, fair use is not precisely a “right.” Rather, it’s a collection of mitigating factors weighed in determining damages, if any, resulting from copyright infringement.

  2. Fair use is technically a defense, in the event of a claim of infringement. Therefore, it is a right in the same sense that a right of self-defense is a right. You have it, but you only need to exercise it if you are challenged. If you do not know you have this right, of course, you can never take the actions that might–especially should you exceed the best practices of your field–involve a claim of infringement. For much more information on documentary and fair use, you can go to http://centerforsocialmedia.org/fair-use/best-practices/documentary.

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