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.