‘Fair use’ is a term used in the media industries in many countries. However in the United States, ‘fair use’ refers to the doctrine in US copyright law allowing the use of short verbatim excerpts of copyrighted material for a range of “transformative” purposes such as criticism, news reporting, teaching, research, and even parody without permission from the copyright holder. Countries such as the UK and France have their own fair use laws with specific language and guidelines, but these are ultimately quite similar in purpose to American fair use doctrine. In countries where fair use is permitted, this legal framework can be a valuable tool for filmmakers, especially fair use in documentary. However, in some cases, claiming fair use on footage used in a project can present editorial and aesthetic constraints, as well as pose a legal and financial burden to a production.
Here are a few things to remember when considering claiming fair use of copyrighted footage in film and television productions.
What is the benefit?
Well, one benefit is being able to use footage for free – so long as one can come up with a high-enough resolution copy of the material. In some clear cases of fair use (that don’t go against their interests of course!), copyright holders will provide a letter of permission as well as high-resolution footage. In cases, however, where the copyright holder would want the production to pay licensing fee or not use the material at all, producers will likely be on their own obtaining a quality video file to edit with.
Another benefit, more generally speaking, is the protection that the doctrine of ‘fair use’ provides content creators wishing to critique work, inform audiences, educate, or parody the material. Culturally, for creators in the documentary world and beyond, this is extremely important. For instance, a documentary critiquing the work of a particular artist’s politics would not be able to express their criticism without demonstrating their points to the audience by showing the work in question. However, fair use can risk to be thrown around loosely to cover holes in a production or how footage without having to licensing it – and this can often be dangerous and complicated.
What criteria must I meet to argue fair use?
Some of the factors affecting a producer’s ability to claim fair use of copyrighted material are the amount of copyrighted material used in the project, the nature of the project as mentioned above, and the effect of the particular use of copyrighted material – lets say footage from a previous documentary – on the market for this material. As a whole, putting together an argument for fair use is a serious matter for directors and producers to tackle. It requires legal resources and can even have financial repercussions affecting the overall archive budget – for instance if extra insurance is required by the distributor or broadcaster because of footage appearing in the film under the auspices of fair use. Whether or not a particular use of footage or other copyrighted material meets these criteria should thus be considered carefully. It’s also important to remember that fair use is always a defense for a specific use of copyrighted material, not a license to use said material.
You can still get 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.