
Fair use is a set of limitations on the ability of copyright holders to claim infringement that are baked into the Copyright Act. The ability to claim fair use of a copyrighted work is primarily applicable to fact-based works, non-commercial or educational use, or commentary or criticism. Additionally, the work where fair use is claimed should not edge into the potential market for the copyrighted work.
In a YouTube video for Film Courage, entertainment attorney Michael C. Donaldson says, “The purpose of the Copyright Act, which many people don’t realize, is to encourage new works. So the creation of new works is why we have copyright law. And if it helps the creation of new works to use little bits of other peoples’ stuff, that is in furtherance of the Copyright Law, not in opposition to the Copyright Law.” (Please visit “How Fair Use Can Help A Filmmaker Save Thousands Of Dollars” for the full video. Attorney Donaldson does say that saving money on a film is not the direct reason for fair use, but it can be a result of correctly applied fair use.)
This comes with a big caveat, though, in that fair use has to be applied within a very specific range of factors to be legal. Fair use only applies to commentary or criticism, and not for a creative purpose, and so is primarily applicable to documentary film and not fiction film. Attorney Lisa A. Callif notes in the same video that you can’t use even a tiny amount of copyrighted material if the use aims at enhancing the creative aspects of your film. She notes, “If someone’s using music as score, for a creative purpose, regardless of how short it is, even if it’s three seconds, we’ll always opine that’s not fair use.”
There are four factors that determine whether the use of a work is judged to be fair use. (I’m using the interpretations from attorney Rich Stim’s article “Measuring Fair Use: The Four Factors”) :
- “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”
This includes whether the work is commercial or non-commercial, and whether the use is transformative or not. The determination of whether it is transformative or not is not necessarily whether different audio or visual elements were mixed in with the original work, but whether the use created a new meaning or message. So, documentary and parody are more likely to be deemed transformative. However, transformative use determination has many aspects – read attorney Stim’s article “Fair Use: What is Transformative?” from Nolo for more discussion and examples. If you are doing a parody, you still also need to be aware of right of publicity, right of privacy, and defamation issues. - “the nature of the copyrighted work;”
Part of the purpose of copyright is to encourage creative expression by protecting authorship of creative works. So using a creative or fiction-based work (such as a novel or movie) is less likely to be fair use than using a fact-based work (like a photo or news item). Something that is fact-based is more likely to be deemed fair use, since it is likely to be lending to an educational or informative use to the general public. Also, unpublished works are less likely to be considered to be fair use, because the author is considered to have the right to present their work before it is used by another person. - “the amount and substantiality of the portion used in relation to the copyrighted work as a whole;”
The question is, is the use just what is needed to explain something, or is it exploitative? Long video clips in a music documentary could get someone into trouble, because it might seem like the documentary maker is trying to make money by just presenting chunks of popular music performances. Also, if you use the most important or recognizable part of the work – the “heart” – this is less likely to be considered to be fair use. - “the effect of the use upon the potential market for or value of the copyrighted work.”
In this case, the courts would consider whether the unlicensed use would be taking away a considerable amount of the market for the copyrighted use.
Fair use is different from the allowable nominative use of trademark. Just giving a credit for a work is not enough to call something fair use. Fair use is not precisely a cut and dried issue, but there are resources and tools to the right to help you decide if you want to claim fair use of copyrighted materials in your film. And, it’s always wise to completely attribute any copyrighted material in your film, whether you list the attribution as the material is shown on-screen or in the final credits of the film. See the article “Documentary Filmmakers’ Statement of Best Practices in Fair Use” from the Center for Media & Social Impact for more guidelines.
One of the debates with fair use for documentary filmmakers is whether you should try to sketch out a case for fair use and get the price for the license pushed down, or just use the clips in the most fair use way possible and see if you get sued or not. I can’t tell you which one is correct. I will say that you will need to be very, very sure that your use is fair use before you take that gamble. In any case, do your own research and if in doubt, consult with an intellectual property lawyer. A good article that discusses this question is “Paying for archive footage: Fair’s fare?” by filmmaker Adam Benzine. And, one of the attorneys at the center of the fair use case surrounding Room 237, the documentary on The Shining, is Michael C. Donaldson. His book Clearance & Copyright: Everything you need to know for Film, Television, and other Creative Content (written with Lisa A. Callif and Christopher L. Perez) should be a good resource on this topic.
Within the past 10 years there have been several DMCA exemptions created to allow for breaking encryption to get material for fair use for documentary filmmakers. Recently, there were extra exemptions added for fiction filmmakers for “purposes of criticism and comment, where the clip is used for parody or its biographical or historically significant nature.” See the article “Good News on DMCA Exemptions from the Copyright Office” from Patricia Aufderheide, founder of the Center for Media and Social Impact, for more information.
Also please visit Fair Use Tools and Best Practices on this site for more resources to help you make a correct determination of fair use. If you have any questions at all about whether your use is fair, you should consult with an entertainment or intellectual property lawyer.
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