Licensing, Uncategorized

Fair Use Explained: Our Expert Guide for Documentary Filmmakers

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Fair Use Explained: Our Ultimate Expert Guide for Documentary Filmmakers

What do we mean by fair use? Once a baffling legal term and feature of copyright law, which was mainly taken advantage of by journalists and educators, Fair Use is now an essential tool for documentary filmmakers to understand and make use of. At Archive Valley we’ve been challenged on that so many times that we thought it would be useful to dedicate a paper to that. 

Though the fair use doctrine is a U.S. specificity, similar concepts exist elsewhere in the world (e.g. droit de citation in France, fair dealing in U.K.), and understanding how to employ fair use in compliance with copyright law is certainly a hot topic amongst the documentary filmmaker’s community. 

While it is essential to be granted permission to use someone else’s intellectual property, be it archival footage or any other type of copyrighted material such as stills or sounds, the fair use exemption is something that raises a lot of interest and a lots of questions from documentary filmmakers and producers – who often referred to it in a matter of budget, as a right to avoid paying licensing fees. 

It’s crucial for any doc filmmakers willing to claim fair use in their productions to get better informed about the ins and outs of fair use, otherwise there’s a risk to commit copyright infringement, which can lead to lengthy and costly legal problems. Indeed, fair use is not a “wildcard” to be used under any circumstances, as there are criteria to apply with. 

In this article, we’ll first try to provide some key elements about what is the fair use doctrine in the U.S. and what are the fair use four factors, before emphasizing on documentary filmmaking with the CMSI Statement of Best Practices – which is a must-read for any doc filmmakers – and the fair use of archival footage.

Understanding the fair use doctrine

Fair use: a U.S. copyright exception 

A U.S. specificity, Fair Use is a legal exception to copyright law that has been around for over 150 years. Fair use allows the unlicensed use of copyrighted material –  such as text, image, video clips and audio files – without permission from the author or copyright-owner under certain circumstances such as criticism, parody, news reporting, commentary, research and scholarship, and teaching. 

Fair use is a legal doctrine that actually provides a bridge between the U.S. Copyright Law and the First Amendment that protects freedom of speech, allowing both to advance access to information in alignment with the public interest. But, as always, it’s not quite as simple as that – what constitutes the public interest? Who gets to decide, and how do they do it?

It’s important to understand that fair use is a defense for copyright infringement, therefore there is no strict legal definition of fair use – only general guidelines. Fair use is flexible,  and much of what defines it is determined by court decisions.

Indeed, judges and lawmakers who created the fair use exception didn’t want to limit its definition, so it is more or less open to interpretation on a case-by-case basis. In the context of a copyright infringement action, the court will evaluate if the defendant has acted reasonably and in good faith, and will ultimately determine if the use qualifies as fair or not based on a set of specific criteria. 

The four factors of fair use: a checklist

When lawyers and judges consider fair use claims, they conduct a fair use analysis by employing a four-factors test, set out in the Section 107 of the U.S. Copyright Act, relating to:

1. The purpose and character of the use.

When it comes to the purpose of using copyrighted work, one word is key: ‘transformative’.

If you are commenting on, criticising or parodying a work, this makes for an extremely strong case, because you are employing the quoted material in a different form or a different purpose from the original.

Keep in mind that you have to make something ‘new’ while incorporating copyrighted work to yours. A repetition of the original work with no added value, illustrative or decorative purposes would therefore not qualify. This factor also takes into consideration whether the use is commercial or not. 

2. The nature of the copyrighted work.

Next up, there is to consider the nature of the copyrighted work that has been used. It is harder to justify fair use with highly original or creative works, as opposed to with fact-based works – such as news footage or a quote from a historical record. 

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

How much of the copyright-protected work are you using? This relates back directly to the first factor, and ‘transformative purpose’, since the use must be limited to the least amount of the work possible, in order to carry out this purpose. There is an exception to this when you use the most famous or memorable, albeit short, part of a copyright-protected work: in this incidence it is unlikely you could claim fair use.

4. Effect of the use upon the potential market for or value of the copyrighted work.

Finally, the fourth factor is the effect that use would have on the potential market or value of the copyrighted work. Will it be harder for the original copyright holder to monetise their work, now that it has been copied? If judges consider that your use of the copyrighted work can provide a potential substitute for the original, that’s not good. 

Fair use: a balancing act

Let’s take a look at these four factors which serve as a general framework. While the transformative purpose and the amount of material used are top priority, it’s essential to go through this four factors checklist thoroughly when considering if your use of copyrighted material falls within the fair use doctrine, and can be used without clearance. 

If you were in court battling a copyright owner over a copyrighted work and whether or not there was copyright infringement, the judge would compare your use of their work side-by-side with the original work to see if their copyright has been violated.

There’s no strict formula, but awareness of theses four factors will help you decide whether your fair use claim is valid or if the legal risk is too high. By treating the four use checklist as a sort of balancing act, where all the factors are applied, weighing up and assessing the relevance of each factor should lead you to a decision.

The Documentary Filmmakers’ Statement of Best Practices in Fair Use  

At Archive Valley, whenever we are in conversation with documentary filmmakers who say they want to fair use footage, we always redirect them to the Documentary Filmmakers’ Statement of Best Practices in Fair Use. This document is an invaluable resource for any documentary filmmakers, producers or archive researchers when seeking to make unauthorized use of copyrighted material. Let’s delve further into the details.

The making of the CMSI Statement of Best Practices

The Documentary Filmmaker’s Statement of Best Practices in Fair Use was introduced in 2005.

The entities behind it are: The Center for Media and Social Impact (formerly the Center for Social Media), a research center in American University’s School of Communication founded by Professor Patricia Aufderheide, a leading expert in fair use, in consultation with a legal advisory board of copyright experts as well as veteran doc filmmakers and organizations such as the IDA.

Previously a somewhat murky subject which independent filmmakers had little clear information on, the CSMI statement has revolutionised fair use within documentary filmmaking. 

Since there was a lot of confusion and misunderstandings about fair use, the goal was to “to encourage documentarians to rely on fair use where it is appropriate and to help persuade the people who insure, distribute, and program their work to accept and support documentarians in these choices.”

As explained in the Statement’s introduction : “In making films for TV, cable, and theaters, documentarians who assert fair use meet with resistance. All too frequently they are told (often by nonlawyers) that they must clear “everything” if they want their work to reach the public. Even so, some documentarians have not been intimidated.“

With fair use having been practiced in other media for decades, this Statement finally created a set of guiding principles for doc filmmakers to navigate the ways in which it is possible to claim fair use in the context of documentary too.

Indeed, we can read in the Statement: “(…) fair use is healthy and vigorous in daily broadcast television, where references to popular films, classic TV programs, archival images, and popular songs are constant and routinely unlicensed.” Thanks to this handbook, nonfiction filmmakers have gained confidence in relying on fair use, in particular in instances where the project would not be possible without using non-licensed material.

Key instances of fair use in documentary filmmaking

Having examined the history of rulings on fair use of copyrighted works by the US Supreme Court, the CSMI found that generally the decision to grant fair use in the documentary field greatly depends on the ‘transformativeness’ of the use, and the amount of material used. 

Based on that, they have identified four key situations that are “informed both by experience and ethical principles,” in which they explain how fair use can be successfully claimed.

We’ve enlisted these instances below, but we highly recommend to take your time and not skip reading the full document as it presents clear descriptions, principles and (most importantly) limitations – such as having diverse sources of material to limit the risks and being able to identify and credit the rights-holders.

The CSMI has also assembled a great document with Examples of Successful Fair Use in Documentary Film, some of which of the videos we have embedded below.

Here are the four situations that are detailed in the Statement: 

1. Employing copyrighted material as the object of social, political or cultural critique 

This class of use involves using unlicensed material as part of a social, political or cultural critique. This includes “situations in which documentarians engage in media critique,” or in some way criticising the actions of a large corporation. 

In these types of cases, documentary filmmakers critically examine and analyse copyrighted works, whether they be text, images, or sound. The following CMSI example sheds lights on a socio-political critique of consumerist culture in the U.S., which uses commercial TV adverts.

2. Quoting copyrighted works of popular culture to illustrate an argument or a point.

Even if you are not critiquing a work, you might still be able to claim fair use if you are using it to illustrate an argument that you are making. The CSMI offers the example of a documentarian using clips from fiction films used to show changes in racial perceptions in the U.S.

In this process, the filmmaker is using short quotations for a new purpose, adding new value rather than “free-riding”.

3. Capturing copyrighted media content in the process of filming something else.

The CMSI handbook states: “In the context of the documentary, the incidentally captured material is an integral part of the ordinary reality being documented.”

If the role of the documentarian is to try and capture and present aspects of reality, how can they avoid inadvertently capturing copyrighted material? The answer: they often can’t.

Posters on walls, or diegetic audio and music, are normal parts of ordinary life, and will inevitably make their way into documentary films, unless filmmakers were going to artificially intervene to prevent this and falsify reality. This is where fair use steps in, and protects a filmmakers’ right to try and capture the real world, without interruption or filter. But keep in mind that, in order to qualify, the incorporation of such unlicensed material shouldn’t be intentional (meaning ‘directed’).

4. Using copyrighted material in a historical sequence.

Finally, we can turn to historical sequences – an extremely relevant section for those interested in telling stories using archival footage. Historical documentary as a medium has great social and educational value in sharing and bringing to light information on our collective past for future generations. There are many historical stories which would be impossible to represent on screen without the selective use of words spoken, music played, or images captured at the time. 

The Statement raises that sometimes “the material cannot be licensed, or the material can be licensed only on terms that are excessive relative to a reasonable budget for the film in question”.

In order to invoke fair use on these grounds, filmmakers must show that there is no alternative material which could be a suitable substitute, and that the unlicensed material used is not the main focus of the documentary.

On their website, the CSMI have two brilliant examples of archival documentaries which use this approach. The first (below) on Martin Luther King, using footage of his speech, and Rudy Giuliani, using newspaper articles. 

Of course, these four instances are not exhaustive. There are many hybrid situations that may be faced by documentary filmmakers in their practice, but these four principles give an excellent basis to assess if your use of third-party material can be justified as ‘fair’.

How do documentary filmmakers feel about fair use?

In 2007, two years after the Statement has been released, Intellectual Property Today published an article reflecting on the success of the Statement, entitled ‘‘Fair Use and Best Practices: Surprising Success.” They say:

‘‘The viability of fair use—legitimate, unauthorized use of copyrighted material under certain circumstances—has come into question (…). The creation of the Documentary Filmmakers’ Statement of Best Practices in Fair Use demonstrates that in fact fair use is a vital and functional part of copyright law, when its terms are well-understood by a particular creative community. Released in November 2005, it has already changed industry practice to the point that all major insurers of documentary film now routinely accept fair use claims that a lawyer asserts are backed by the Statement.”

Later on, in 2014 the CSMI conducted a survey into fair use finding that :

‘‘70% of those surveyed said they had at least a “good” understanding of fair use, and 75% felt that fair use is “absolutely necessary” or “very useful” to documentary filmmakers.’ Fair use is also becoming more widely accepted within the business. Over half of those surveyed (60%) reported that they had recently employed fair use in a production, and almost all reported having no difficulty with insurance (99%) or broadcasters (95%) accepting fair use, as long as they had a letter from a lawyer attesting that the use was fair.”

But still, it appears that some documentary filmmakers continue modifying their work because of some sort of self-censorship and lack of knowledge. 

It’s important to notice that the CMSI Statement has also opened up the negotiations for the possibility to use another type of copyrighted-protected works without permission: orphan works. Orphan works constitute another similar challenge faced by nonfiction storytellers in their daily practice, and you can find out more about this issue in our recent paper.

Good to know: in July 2021, the CMSI has published The State of the Documentary Field, a new fantastic report created in collaboration with the IDA. We can read here that 76% of the U.S. documentary filmmakers and producers who responded to the survey have leveraged fair use in their most recent film.

Fair use and the pro’s & con’s of using footage without permission

Now let’s move to the specifics of fair-using archival footage in a documentary.

The fair-use exemption is often brought to the table during the footage licensing or clearance process. Here we wanted to share some positive and less positive elements relating to using unlicensed archival footage to help you make your own conclusion.

Matters of budget: free footage versus additional costs 

Invoking fair use can reduce licensing costs, since fair use prevents you from paying the licensing fees that is normally required for using copyrighted material. 

We all know that the licensing process can be tedious, frustrating and expensive. But, if you meet the fair use guidelines, and can find a high-enough resolution copy of the material, you can use footage for free. This could be really helpful at times when budgets are tight. Even if you know that you do want to license footage, knowing your rights about fair use can put you in a stronger negotiating position.

On the other hand, fair use isn’t all money-saving magic. It can have financial repercussions affecting the overall archival budget.

For instance, it may require legal resources such as the need to hire or consult with a lawyer to avoid doubts and make sure your use of fair use material is justified. This has a cost and it’s up to the producer to assess if it’s worth it. 

Besides, it might happen that extra insurance such as the Errors and Omission Insurance is required by the distributor or broadcaster because of footage appearing in the film under the auspices of fair use. In an interview about fair use with iTVS, archive producer and co-author of “Archival Storytelling“ Kenn Rabin explains the need for a letter from a lawyer detailing each example of fair use, “to show that to your E&O insurers. Otherwise they’ll charge you a fortune because they’ll consider it riskier”.

We can’t avoid sharing this short interview of our friend Kenn Rabin. Here are his enlightening words on fair use!

Licensing versus fair-using: play safe or take a calculated risk?

Being aware of these potential additional costs and the inherent risks of using footage without permission, some filmmakers and producers might rather clear and license everything.

Claiming fair use always carries a certain amount of legal risk and there is no 100% guarantee for a producer or a filmmaker who uses a copyrighted work without permission to be protected under fair use. No matter the precautions you take, there is still the risk of being sued.

As IndyWire noted in a blogpost outlining ‘8 Legal Tips for Documentary Filmmakers,’ “the holder of the copyright may still sue you even if you have a fair use letter from the attorney who helped you to obtain E&O insurance.” This can be a major turnoff for producers – as even though there is insurance for this kind of situation, it is never good for a production to be plagued by copyright infringement lawsuits.

As renowned documentary filmmaker Brett Morgen remarked in a panel sponsored by Archive Valley at IDFA in November 2017, he would rather be able to sleep at night without worrying about being sued for something in his film. Licensing, for Morgen and for other filmmakers who routinely use a lot of archive footage or other third-party material, is the way to go.

That being said, in alignment with the Statement’s main idea, fair use is a great opportunity for doc filmmakers and you shouldn’t be afraid to rely on it if your use qualifies. Many talented documentary filmmakers have shown how you can use the fair use doctrine effectively, gaining access to archival footage which might otherwise be unaffordable or inaccessible.

Getting access to otherwise unaccessible archival footage 

Because the doctrine of fair use is connected to the right to freely criticise, it can be a useful way to gain access to types of footage that might otherwise be difficult to access while they are essential for the project.

When a filmmaker wants to criticise a corporation, an organisation, a media company etc, they would need to access some footage that belongs to the entity being criticised, and this access might be denied or restricted by the rights-holder. This is where fair use can be a lifesaver for your project. 

Just be aware that clearance challenges, failure to license a crucial piece of content or refusals from the rights-holder to give your permission to use their footage do not inherently grant any kinds of fair use status. You still need to comply with the fair use regulations.

It’s interesting here to add that the DMCA, the Digital Millennium Copyright Act, makes it illegal to “rip” footage off copyrighted recordings such as DVDs or digital streams, and thus this comes in contradiction with the filmmakers’ ability to fair use a piece of footage that would be otherwise inaccessible.

Fortunately, a 3-years exemption for documentarians has been renewed in 2018, and secured for the first time for fiction films too, which is good news for biopics. Let’s hope the 2018 rulemaking will be renewed in 2021.

Poor quality footage: a blurry challenge 

In relation with the previous point, note that in the absence of permission and payment of licensing fees, producers will likely be on their own obtaining high-resolution files to edit with. You will read in the CSMI Statement that : “This statement does not address the problems that result from lack of access to archival material that is the best quality or the only copy.”

There is no guarantee they will be able to obtain files of enough resolution, and the lack of high-res files can seriously impact the visual quality of a film.

After all, copyright holders want to be paid for their footage. So, obtaining high-resolution files can be a real challenge, and filmmakers can be left with the choice between using poor quality footage, or cutting it completely.

On a positive note, in some clear cases of fair use, copyright holders may provide a letter of permission as well as high-resolution footage. So it is not impossible that you will be able to fair use top quality footage! Just keep in mind that it is likely rights holders will want to protect their best quality content.

And what do archive researchers say about fair use?

Thanks to their extensive experience on nonfiction films and series, archive researchers and archive producers are really best-equipped to share their know-how and expertise when it comes to Fair Use. The same could be said for other types of national copyright law exceptions across the globe.

Archive researchers have usually been confronted with many fair use cases and fair use challenges, and know how to deal with such issues and best help filmmakers and producers in their decision-making process. 

In our Archive Valley Masterclass (5th edition starting January 25, 2022), you can discover some of their invaluable advice and the do and don’t they gathered through years of involvement in the documentary film industry. This resource is continually worked on as a practical resource for all aspect of archival research in documentary filmmaking. 

 

Disclaimer: Archive Valley is not a legal institution and therefore this article is made for informational purpose only and does not constitute professional legal advice. 

 

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Using Footage Without Permission: the Orphan Work Dilemma

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Using Footage Without Permission: the Orphan Works Dilemma

Using footage without permission is not a simple issue and can land filmmakers in very hot water.

Most documentary filmmakers want to find rare and never-before-seen footage, but things begin to get tricky when it’s time to seek permission to use it. Unless the copyright has expired and the creative work can be used freely as public domain footage, obtaining authorisation to use someone’s intellectual property is not optional. 

Now there is a term for this particular case where the rights-holder cannot be found but the footage is still protected by copyright: this is what we call an ‘orphan work.’ Encountering an orphan work causes that dilemma most documentary filmmakers face one day or another: should I persevere with using footage without permission or not? 

This is a real concern and a kind of grey area for many filmmakers. Let’s examine what an orphan work exactly is and the legislative framework around it, so you can better assess how to deal with orphan works, and how to get licensing when possible.

What is an ‘orphan work’?

An orphan work is a copyright-protected work for which one or more rights-holders (in the case of a collective work for instance) are indeterminate or cannot be located. 

Sometimes, it’s impossible to identify a right-holder of a piece of footage because the business who owned it no longer exists, or the rights-holder is deceased and has no heirs, or other reasons. 

Orphan works are everywhere, from flea markets to Youtube. A great number of presumed orphan works can also be found in archival collections since archives act as memory institutions.

According to a survey carried out in Europe in 2017 by EYE, the national film archive of the Netherlands: ‘21% of all film works held in the responding 24 film archives (who responded to the survey) may be considered orphans.’

Using footage without permission: the orphan works dilemma
The orphan works dilemma

What are the copyright and licensing issues with orphan works?

When a documentary filmmaker begins looking for archival footage they may stumble upon footage from all sorts of different online and physical sources, including found footage, amateur footage, and home-movies. 

It’s the filmmaker’s duty to make sure they can gain authorisation to use a piece of footage that is still protected by copyright, and generally speaking, there’s a compensation fee for that use.

Indeed, a copyrighted work can not be used by third-parties without the rights-holder’s consent. So what happens then when there’s no rights-holder associated with the work and you don’t know who or where to get licensing from?

Today, no technological solution exists to trace a work back to its rights-holder easily. This can lead to a very long quest in order to identify and locate the owner of the rights, especially if you lack data and info. 

If your search remains unsuccessful and you don’t want to give up on this perfect footage you find, your use of it in your documentary will be at your own risk.

Using footage without permission is not a decision to be made lightly. Basically, the risks are to be sued for copyright infringement, injunction and other damages – that could jeopardise the distribution of the documentary. 

That’s a big threat, which makes the IDA, the International Documentary Association, argue in 2012 before the United States Copyright Office and Library of Congress : « The orphan works problem remains a significant impediment to documentary and independent filmmaking today. »

 

Orphan works and Fair Use in the U.S.

For US-based filmmakers, there’s no such thing as orphan works exception, similar to the Fair Use exception, nor a statement of best practices to protect filmmakers, such as the fantastic Documentary Filmmakers’ Statement of Best Practices in Fair Use.

Therefore, independent filmmakers and documentary associations such as the IDA and Film Independent in the U.S. are lobbying the government to create legislation similar to that which is applied to Fair Use for orphaned works.

The IDA have worked extensively to create clearer regulation for identifying orphan works and using footage without permission in this context. They argue that flexibility is key when it comes to legislation around orphan works, and suggest modelling orphan work legislation on Fair use guidelines:

“We have suggested in previous comments and in the Orphan Works Roundtables that Congress and the Copyright Office should approach orphan works reform with fair use in mind. As with fair use, the orphan works problem affects every part of the copyright system, from libraries and archives, to public and private news outlets, to documentary and independent film”.

See here attorney Michael Donaldson presenting the orphan works issue to Congress.

 

How do orphaned works licensing laws vary around the world?

Copyright laws differ greatly from one country to another, so are the rules that have been adopted across the world to permit certain uses of orphaned works.

For example, countries such as Japan and South Korea have state guidelines for using footage without permission and orphan works.

Canada has created a supplemental licensing scheme, under Section 77 of its Copyright Act, that allows licenses for the use of published works to be issued by the Copyright Board of Canada on behalf of unlocatable rights holders, after a prospective licensor has made “reasonable efforts to locate [holders of] copyright”. We can read on Wikipedia that as of March 2019, the Board had issued 304 such licenses, and denied 24 applications.

Meanwhile UK copyright law is more broad, and cannot be applied for all orphaned works. In recent years the UK government has developed a register where filmmakers can submit orphan works and apply to use them, along with proof that due diligence searches have been fulfilled.

In most of the countries in continental Europe, the authors’ rights are maintained long after the author’s death and passed to family members.

EU has adopted the Directive 2012/28/EU that enables certain uses of orphan works. In particular, it addresses the challenges posed by orphan works where European archives are prevented from digitising their body of works and from making them accessible to the public without the rights-holder’s authorisation.

Available online, The Orphan Works Database is a great response to the orphan work issue in the EU. Here is a video explaining how it works.

 

 

Avoiding copyright infringement: 8 tips for documentary filmmakers

Deciding whether using or not using footage without permission in your documentary is not to be taken lightly. While many doc filmmakers are actively seeking orphan works because they are never-before-seen footage that can elevate their films, things need to be done properly in order to manage the risks and avoid legal actions for copyright infringement. 

Here are some tips to help you in your rights-clearance process:

1. Keep track of the rights-holders as you go

Use a good system like spreadsheets to keep track of crucial info during your archival research and licensing process. You don’t want to accidentally include footage from an unknown copyright holder just because you haven’t made proper note of it.

2. Allot time to find the rights-holders and get licensing when possible

Make sure you have the timeframe (and funds) to carry out a proper investigation. Obtaining authorization for the use of archival footage (or archival material) shall be a priority. Do not wait until post production to find the rights-holders, or you may find you have to discard the footage altogether.

3. Make sure the archival footage is truly an orphan work

Never assume that a video clip you found is orphaned before conducting an extensive research to locate the rights-holders.

If you’ve succeeded in locating and contacting a rights-holder but there’s no reply, that’s not an orphan work anymore; the rights-holders are not obliged to respond to your request, and it’s maybe wiser to find a footage alternative. 

4. Conduct a diligent search

There is no set procedure to conduct a diligent search and it all depends on the nature of the archival footage. A robust diligent search would imply checking multiple sources including professional associations, copyrights offices, obituaries and so on.

But it’s also like detective work, where you have to find clues and talk to many people, like archivists, to detect potential rights-holders. The provenance of the footage can provide crucial info too, and sometimes image recognition tools work like a charm.

5. Keep evidence of your rights-clearance process

A copyrights-owner can suddenly resurface. Being able to prove you’ve made your best efforts to find them and avoid using footage without permission is key to protecting yourself from copyright infringement. Keep track of all your correspondence and write a report so as to show your good faith.

6. Make sure you account for copyrights in your documentary budget

You must keep aside a reasonable amount of money for compensating a rights-holder who would resurface and claim licensing fees – and have proof that you have done so.

7. Hire an archive researcher

Archive researchers are like the detectives of the film world. If there is an unknown copyright holder, an archive researcher is your best bet for tracking it down. On Archive Valley, you’ll find a unique community of 500 professional archive researchers. 

8. Consult a copyright lawyer

Copyright lawyers are trained to decipher the complex laws surrounding issues such as orphan works. Make sure to consult a professional attorney specialised in intellectual property rights before deciding whether or not to use footage without permission.

 

Disclaimer: the information provided in this article does not, and is not intended to, constitute legal advice. You should not act upon any such information without first seeking the advice of a professional attorney.


  

 

Documentary Productions, Uncategorized

A Look at Documentary Short Films & the Opportunities Out There

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Documentary Short Films : Why they are here to stay and how you can be a part of it.

Some people might think you need a full two-hour documentary to produce an award-winning, emotionally-charged, beautiful work exploring the nuances of the Second World War and its traumas. The must-see short doc Colette (2020) would prove them wrong, winning the 2021 Academy Award for Best Documentary (Short Subject).

Directed by Anthony Giacchino and produced by Alice Doyard with The Guardian, it is only the most recent example of a new genre which continues to go from strength to strength with impactful stories that speak to the world.

The Rise of the Short Form Documentary

We often hear that we’re in the golden age of documentary filmmaking, and maybe it’s even more appropriate to say that we’re in the golden age of documentary shorts – as editor-in-chief of Nonfictionfilm.com Matthew Carey pointed out in 2016 yet. 

In the past decade, the short-form documentary has become more and more prominent. Two concurrent trends have facilitated the rise of this format: a widening of the avenues by which audiences consume digital content online, and a narrowing of consumer attention spans.

Indeed, short docs offer a chance to reach wider and younger audiences who are used to digesting shorter social media videos, but are still keen to immerse themselves into engaging stories which stay with them for a long time. 


As the Internet has become an increasingly prominent avenue for distribution for short films, there are a raft of new opportunities for filmmakers willing to make short docs and get them produced and seen, including archive-driven short docs. 

Jean Garner, Executive Producer and mentor for Global Short Docs Forum has argued ‘because the media world is exploding in terms of platforms, short form documentary is finding its home’. With short-docs rising in prominence on Netflix, Prime, Youtube, established news media websites and tailor-made platforms like Field of Vision, there is a vibrant short-doc ecosystem out there. 

While there are limitations that come with having to concentrate narratives into minutes rather than hours, this distillation can spark creative genius. On top of that, many documentaries are ideally suited to the short form, for its quicker production timeline enabling filmmakers to match the contemporary relevance of their story and the immediacy of their access. Sometimes, it’s all about the right time. 

Whether it be hard hitting social commentary like the Academy Award-winning Period. End of Sentence (2018, dir. by Rayka Zehtabchi), or archival-heavy work such as the dreamlike A Love Song For Latasha (2019, dir. by DOC NYC Directing Award-winner Sophia Nahli Allison) or the fascinating IDA Award-winner short John Was Trying to Contact Aliens (2020, dir. by Matthew Killip) – all available on Netflix – the short documentary is here to stay as a key landmark on the media landscape.

3 must-know platforms that help documentary shorts to come to life

To help you best navigate the short-doc world and the opportunities it offers to both experienced and emerging filmmakers, we’ve selected three of the most interesting platforms available to you to fund, distribute and promote your documentary short films.

1. Short form documentaries on The Guardian

In 2016, the UK-based Guardian relaunched its Guardian Documentaries series, commissioning and curating short documentaries from around the world.

Head of Video at The Guardian, Charlie Phillips, who previously worked as deputy director at Sheffield Doc/Fest, describes their process: “we make films of 15-30 minutes – comparatively long for an online video – that take us in-depth into untold stories about real people.”

The Guardian works hands-on with filmmakers of all experience levels and backgrounds from across the world, acting as executive producers in a process which can take up to a year (with an average of 3-6 months). In terms of viewers, the documentaries released by The Guardian reach large online audiences globally, as The Guardian News & Media website network attracts 140 million monthly browsers.

For Charlie Phillips, telling impactful stories to their audience is the main priority, and takes precedence over thinking about film festivals. That said, several of their short docs have also won critical acclaim. Two of the works produced by The Guardian illustrate this brilliantly.

Firstly, there is Black Sheep (2018), directed by Ed Perkins. It is a poignant exploration of identity, racism and violence, which blurred the boundaries between documentary and fiction. Black Sheep went on to win Best Short Documentary at Sheffield Doc/Fest, and was also nominated at the 2019 Oscars.

Secondly, there is Colette (2020). While succeeding in capturing people’s hearts and minds with its unique approach bridging the past and the present, the short doc film went one step further this year as it has been declared the Oscar winner 2021 in the category Best Documentary Short Subject.

Black Sheep and Colette are just two films in a diverse range of Guardian documentaries, sharing a common interest in unique creative visions. They work with filmmakers of all experience levels and backgrounds from across the world, and could be the perfect partner for your docu-short! 

Don’t hesitate to submit your documentary short ideas to them here. 

2. Short documentaries on The New York Times’ Op-Docs

On the other side of the Atlantic, there is another newspaper with global reach churning-out top-quality video content – The New York Times’s Op-Docs.

Begun in 2011, Op-Docs is a series of award-winning documentary shorts made by independent filmmakers. Op-Docs former producer and curator Kathleen Lingo explains in Documentary Magazine (IDA) that their mission is “to provide a platform for voices from outside The New York Times to give their point of view on issues of the day”.

In the past decade they have helped make around 300 short, interactive and VR documentaries, with a broad range of styles and subject-matters. They help with publicity, distribution, funding and archival footage and music access. 

Each Op-Doc is generally 5-10 minutes in length, although some are noticeably longer, depicting a unique story to spark conversations across the globe. They say they consider “written pitches (…) as well as completed videos” but cannot consider film trailers or videos which have already been posted online. Short-pieces adapted from longer works in progress are also eligible.

Like The Guardian, they strongly encourage a diverse range of directors from all over the world, and they work with first-time doc-makers as well as with established contributors.

Op-Docs collaborates with festivals such as Sundance and have gone on to gain widespread critical acclaim, picking up official selections at leading film festivals, Emmy nominations, News and Documentary Emmy Awards, Peabody Awards, and Oscar nominations. As an example, the vibrant and intimate A concerto is a Conversation (2020) directed by Ben Proudfoot and Kris Bowers was nominated this year. 

Op-Docs have also gone on to form the basis for later feature films. One notable example is Time (2020) by director Garrett Bradley.

The factual film followed a prisoner’s wife fighting for the release of her husband, who Bradley met when working on her Op-Doc Alone in 2016. Time was meant to be another short film, but the last day of filming, central character Rich Fox gave Bradley an incredible archive of home video footage! The 81 minute film won the Documentary Directing Award at both the Sundance Film Festival and the IDA Documentary Awards, and it was nominated for an Academy Award for Best Documentary. Time is streaming now on Amazon Prime.

If you think Op-Docs is the right platform for your short docs, you can submit your pitches through this form or contact: opinion.video@nytimes.com.

3. Documentary short films on Field of Vision

When it comes to short-documentary specialists, Field of Vision are some of the best in the game. Co-created by the Oscar-winning documentarian Laura Poitras who directed Citizenfour and Risk, they describe themselves as a ‘filmmaker-driven documentary unit that commissions, creates and supports original’ projects (shorts, features and episodes).

According to their submission guidelines, they seek to support work that ‘uses innovative and artistic ways to explore contemporary global issues through a cinematic lens’. They look for work which pushes boundaries, offers unique access or new perspectives on the world, and they support independent filmmakers who are often taking risks with their investigative and journalistic work.

Field of Vision commissions filmmakers to develop stories they have already identified, but many of the films are cold submissions. To apply, you need to fill in their online form.

Of the many notable successes that have come from Field of Vision, Do Not Split (2020, dir. by Anders Hammer) is particularly exciting. The film documents many landmark events in the Hong Kong protest movement, and it received the DOC NYC “Courage Under Fire” award. It was also an Oscar contender for Best Documentary Short Subject this year. 

Since July 2020, Field of Vision has also included IF/Then – previously a part of the Tribeca Film Institute. This is a mentorship programme for underrepresented filmmakers making world-class short docs that ‘break barriers to access’. 2021 is the inaugural year of IF/Then’s partnership with Hulu, where winners will receive mentoring and $25,000 in funding. While applications have closed for 2021, watch them carefully for future announcements! 

Pitching your short documentary ideas in 2021 and beyond

Whether it’s the funding, distribution or mentorship opportunities, that appeal to you most – you need to nail your short documentary application if you want your short documentary project to find success with some of these brilliant platforms. 

With all of them there are some core elements which they will want to see :

  • A one-page proposal : Can you articulate a compelling, timely and original story in a concise way? Did you think about the narrative arc and story structure of your documentary?
  • A rough budget: Have you carefully thought through the costs, taking time to estimate the budget needed to produce your short doc – including potential licensing fees of archival material?
  • Visual elements: How will the story translate cinematically, what is your filmmaking approach to it? Mood boards and 1-minute trailers are great tools to convey the look and feel of your short doc project.
  • Unique access: Why are you the right person to tell this factual story? Who is your main subject or character and what access do you have that others don’t to tell a great investigative or character-driven story ?

Whether you want your short doc to be led by observational material or archival footage – or a mix of both – make sure your story feels like it speaks to the present. All of the platforms above support short documentary ideas motivated by a concern for the contemporary world. 

While there are similarities between the requirements of all the nonfiction video platforms we’ve discussed, not to mention the many other fantastic opportunities out there, make sure you take the time to carefully research each one, ascertain your eligibility and dig around in their FAQ sections. 

There are other opportunities for documentary short films to pitch or submit at festivals, and we’ll make sure to talk about this in an upcoming Archive Valley‘s article focusing on documentary film festivals – so stay tuned! 

Archival Research

How to navigate the tricky terrain of archive research for documentary and fiction film

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Madeline Bates
Article written by Madeline Bates

Madeline Bates currently works as a freelance consultant with arts festivals and regional screen archives in the UK.

Her background is as film curator and festival producer in the UK and Australia and she was director of outreach at FOCAL International.

She trained in visual anthropology and is passionate about bringing screen heritage to new audiences. 

About Archive Valley

The Archive Valley platform connects globally diverse archive researchers and producers with creative companies looking to harness the full power of archival film for their projects.

The team has now turned their expertise and professional networks to archive research masterclasses. A great addition to their portfolio, it will support filmmakers diving into archive waters. It will also help aspiring and practising researchers trying to master their craft.

Archive research in film

Archival research in film and media production is a specialist field that can make an extraordinary contribution to the scope and final shape of a creative project. Archive Valley’s own Archives in Motion blog is a great springboard to explore the reach of archival storytelling, with posts such as: archive producer extraordinaire Rich Remsberg on making “Bobby Kennedy for President”, or Chuck Smith’s “Barbara Rubin & The Exploding NY Underground” on how personal archives can bring to life forgotten pioneers and subcultures. The number of vocational training opportunities for learning this craft are, unfortunately, still rare despite the archive’s growing influence over the future of film and TV.

About the masterclass

The comprehensive overview and expert insights you receive on the masterclass could be a lifeline to many. Whether you’re struggling to understand the notoriously complex world of licensing and third party rights or you want to think about the ethical quagmires researchers may find themselves in when advising creators, the masterclass is delivered in a lively and engaging way and in an easy-to-digest format. It’s also a great starting point or refresher if you’re looking for a centralised resource to widen and deepen your knowledge on the key demands and practices of archive film and media research. Logically broken down into three essential parts the masterclass covers the fundamentals, which could be otherwise paraphrased as: 1) Organisation and creativity – Bringing method to your research 2) Help! I’m not a lawyer! – Best strategies for dealing with licenses and managing your archive budget 3) Evidence vs interpretation or, with great access comes great responsibility – so you don’t fall off any ethical precipices…

Why should you take the masterclass

The class brings together a series of archive producers in each of these areas. Hearing about the colour and context of their experiences and insights is informative, providing animated conversations and expert guidance rolled into one. You may be in the early project stages and trying to wrangle meaning from a creative brief or you may need advice on how to grapple with ethical questions (colourisation, anyone?). Either way, the live sessions and organised video modules are a helpful conduit to becoming more confident and competent as a researcher. Archival storytelling is an established yet evolving field. The masterclass curates industry articles, online tutorials and other suggested resources into one easy to access portal. It calls upon the extensive Archive Valley network of experts to act as tour guides en route, so you can be best prepared to navigate your way through the tricky terrain of archive research.

Everything you need to know
to work with archives.

Register Now

The course starts on March 16, 2021.
Don’t delay. The number of participants is limited.

Archive Researchers, Documentary Festivals, Documentary Productions, Our Blog, Uncategorized

“Finding Sally”: Exploring Ethiopian Archives on a Personal Quest.

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“Finding Sally”: Exploring Ethiopian Archives on a Personal Quest.

An Interview with Director Tamara Dawit

This month, we were lucky enough to exchange with the Canadian-Ethiopian director Tamara Dawit about her new documentary “Finding Sally” that premiered on the Hot Docs 2020 selection for CBC Canada in the middle of the COVID crisis.

In “Finding Sally“, Tamara Dawit explores the sudden disappearance of her aunt Sally in the summer 1973, after Sally became a communist rebel with the Ethiopian People’s Revolutionary Party (EPRP) and subsequently topped the Ethiopian government’s most wanted list. How did this young girl from an upperclass family get caught up in her country’s revolutionary fervor? How does a family process surviving the loss of someone without knowing what really happened to her?

Tamara Dawit

Going beyond the family’s quest for answers, Dawit’s film raises important questions about identity, idealism, engagement and belonging, and contributes to broadening the dialogue about this tragic time in Ethiopian History.

Thanks to a creative patchwork of family pictures and footage especially from Ethiopian Archives, Dawit paints a sensitive portrait of Ethiopia during the Red Terror in which personal trajectory meets collective history. Archive Valley was delighted to interview her about her work and her use of Ethiopian archives to tell her story.

First of all, congratulations about your film “Finding Sally”. Could you tell us about the story of your aunt Sally? Why did it remain a family secret for so long?

TD : “Finding Sally” is my investigation into the life of an aunt I didn’t know existed and 1970s Revolutionary Ethiopia the period she vanished in. Sally was a young woman who came from a privileged upper-class family who became a communist rebel with the Ethiopian People’s Revolutionary Party. Idealistic and in love, Sally got caught up in her country’s revolutionary fervour and landed on the military government’s most wanted list. She went underground and her family never saw her again.

I don’t think Sally’s existence was kept secret from me on purpose I think it was due to the pain and trauma attached with remembering her. When things are painful you can often subconsciously suppress them and in Ethiopia there is very much collective silence about what happened to many people during the revolution.

A film produced by Catbird Productions / Gobez Media

Why do you think it was the right time to tell her story and open the dialogue about this tragic time of Ethiopian collective memory?  

TD : It is important for Ethiopian audiences to release this film now especially as Ethiopia prepares for a federal election. I want to use the film as a conversation started (between generations) to reflect on the past and to learn from the past in order to move forward.

Many Ethiopian families, not only my own lost relatives who were killed, jailed or tortured under the Derg leadership and thus carry painful baggage attached to that period. In Ethiopia we need more content and discussion and remembrance to contribute to the national healing.

By doing this documentary film, what did you learn about your country and its people?

TD : I spent a lot of time researching the Ethiopian revolution and the Red Terror (period of sustained state killings) that included reading any books, reports I could find. As well as talking to many people especially those who knew my aunt or where connected to the communist group she had joined.
As a result of this I learned about the ideology of the student movement, the role of women, the gruesome details of the Red Terror, the political maneuvering of the Derg junta and also about the lasting impacts of that period today on Ethiopians and Eritreans.

Could you share some insights into how you got the film funded?

TD : The film was funded entirely in Canada via mostly broadcaster and federal film funds. In any case financing a film is a long and slow process. But I spent the time before pitching producers and applying to funds to do the full research on the films period, storyline and also available archives in order to have a clear package on how the story would be told visually.

The film shows a beautiful and realistic picture of life in Ethiopia back in the 70’s. How did you manage to visually recreate that ?

TD : In this respect I think I was lucky to have a large family archive of photos to draw upon and well a good amount of footage in the Ethiopian Broadcasting Corporation archives and some international sources to draw on.

For much of the film archive in the film we did have to work closely to in some cases totally rebuild the sound design to improve the quality of the experience. As well a lot of the Ethiopian archive is not the raw file but clips which are set against music or with voiceover which is also why we had to rebuild the sound.

Did you work with an archive researcher? Could you tell us about the collaboration between the two of you?

TD : Yes, I worked with an archive researcher in Canada to search internationally for archives and to license some of the international archives that I was already aware of. I handled the sourcing of archives from within Ethiopia. I gave the archivist a list of key date, events and images that I knew or thought may exists to search for.

Strangely the hardest archive to source diverse images of was actually Ottawa, Canada I in the late 1960s early 1970s.

How did you use archives and more specifically Ethiopian archives to bring Sally to life?

TD : We used film archives to illustrate both Ethiopia and Canada in the 1970s. This enables viewer to see the time and places that Sally lived in. I think also for many viewers this is their first time seeing such extensive images of Ethiopia in this period.

I really aimed to show how modern Addis Ababa was in the 1960s/1970s before the revolution in many cases I think looking similar to many European cities in that era. Additionally, I careful used archives to bring the viewer into the room to see the overthrow of Emperor Haile Selassie and the rule of the military junta which followed.

I also used photo archives to show Sally’s family life and childhood prior to becoming a revolutionary (after which as she lived in hiding there are no images of her) and photo to show the brutality of the state sponsored killings in Ethiopia.

You pointed the fact that it was important for you to preserve an Ethiopian point of view. Did you managed to gather all the archival material you needed in Ethiopian archives? Where did you dig?

TD : Yes, the entire film is told through the POV of Ethiopian characters and more specifically women. This is because we don’t often hear from women when telling the history of Africa and we do often hear about African history from white academics.

The situation and upkeep of Ethiopian archives is something that needs support, similar to many other African nations. We have a lot of photo, film and radio archives but the material is not well sorted, preserved or digitized. So this made for a slow process to access materials for this film but I was able to work directly with the state TV and press agency archives to gather the content which originated from Ethiopian sources.

Again like a lot of African archives it is often housed in Europe as the footage was collected by foreign governments and stringers.

Now that the documentary has been premiered, how do you plan to reach the Ethiopian audience?

TD : I am setting up a large impact campaign to support the release of the film to Ethiopian audiences in Ethiopia and in the diaspora. The film will have a short theatrical run in Ethiopia, tied to discussions and a national tv broadcast.

Part of this work is also to dub the film into more Ethiopian languages to make the film more accessible for school screenings (with a discussion guide), community group screenings and tv broadcasts in Ethiopia on regional broadcasters.

Archive Valley’s community boasts 500+ talented archive researchers in over 60 countries. If your production needs an archival researcher/producer, you can sign up and find the right person for the job in just a couple of easy steps.