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Fair Use Guidelines for Documentary Filmmakers

Posted by Steve Vondran | Jan 29, 2019 | 0 Comments

Attorney Steve® Fair Use Guidelines for Documentary Films - Call us for Low Cost Fair Use Opinion Letters at (877) 276-5084.

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In recent years, documentary filmmakers have been under stricter limitations in regards to clearing copyright regulations in order to use certain content in their films. Although this seems like a specific problem only a few may have, it affects the general population at large because if documentary filmmakers can only use very specific material in their movies, their films may lack the “punch” that they might otherwise have had if granted full access to fair use rights.  In this blog, I will discuss what “Fair Use” how it applies to filmmakers with a focus on Documentary movie makers.

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What is Fair Use?

Fair Use is a subset of Copyright law that has been around for over 150 years. To summarize, Fair Use is the use of copyrighted material (i.e. text, image, video clips, sounds) in a limited and “transformative” way which is considered “lawful” and NOT a copyright infringement.  Such uses can include using copyrighted content for parody, criticism, or commentary.

When using copyrighted material under the fair use right to copyright law, the content user does not have to gain specific written permission from the copyright holder. Some examples of this are the ‘scary movie' franchise which uses popular horror movie tropes and characters in their movies but in a parodying context.  Another is a local news channel that provides commentary about a brands new product and using the brand's name and logo during their broadcast (logos can be copyrighted or trademarked) or even a documentary such as Food Inc. which identifies and names specific brands and companies in relation to their alleged unethical business practices.

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How is Fair Use Determined?

Judges typically base their assessment of whether or not a “fair use” exists by analyzing 4 key factors:

  1. The purpose and character of use
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion taken
  4. The effect of the use upon the potential market

No one prong is deemed more relevant than the other, and the Courts view this on a case-by-case basis.

Attorney Steve® Tip:  Click here to learn about 22 things you can do to make a third-party clip "transformative" improving your chances of fair use.

In the final analysis, however, the judge may be looking at how the use of the copyrighted material will potentially cause economic harm to the materials originator (i.e. the original copyright holder). For example, whether or not the new work may divert sales from the old work.  The Courts want to see “something new” when a filmmaker uses the copyrighted content of a photographer, illustrator, author, songwriter, or other filmmaker or video producer.

If you were in court battling a copyright owner over a copyrighted work and whether or not there was 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.

For example the Original Appalachian Artworks, Inc. v. Topps Chewing Gum, Inc. case in which the Garbage Pail Kids parent company was being sued for violating copyrights of the Cabbage Patch Kids copyright owner. For those that don't know, the Garbage Pail Kids was essentially a parody of the Cabbage Patch Kids featuring gruesome alternate versions of the Cabbage Patch Kids style characters. Although this seems like a cut-and-dry case of parody (protected by the first amendment) it was considered an infringement, not included under fair use, and a shock to many copyright specialists.

In fact, According to Wikipedia:

“School ban

During the height of the card series' popularity, Garbage Pail Kids were banned in many schools. One of the main reasons for the ban was that the teachers cited them as distractions during class.

Trademark infringement lawsuit

Topps was sued by the makers of Cabbage Patch Kids, Coleco, for trademark infringement. As part of the out-of-court settlement, Topps agreed to modify the appearance of the Garbage Pail Kids to remove the resemblance between the characters and to change the logo design. Production of the cards themselves continued, but by 1988 sales had dwindled and a planned Series 16 was never produced.”

As I had said in other blogs, “Parody is like shooting at the king you better not miss.”

This sort of thinking needs to be considered when using ones copyrighted work, another hypothetical example is let's say a documentarian uses politically charged copyrighted video footage in a way that the judge does not intellectually align with, (say using Fox News video material in a negative light, let's say for a pro-socialist documentary).  While judges are assumed to be neutral, it can be hard to separate one's beliefs from the law and if the judge does not agree with socialism, for example, and also watches Fox News religiously it may be possible that they will not rule in your favor.

Why is Fair Use necessary?

According to the U.S. Supreme Court, Fair Use is the key to harmonize copyright laws with the First Amendment.  It can be tough to speak without pointing to “exhibits” to help make your point.  The exhibits can be another person's copyrighted art, news story, tweet, quote, etc.  Now that some companies have lobbied their way into changing the laws, and to seek to keep their copyrights from becoming public domain, many fear the public is losing creative potential, and not recognizing fair use rights can have a “chilling” effect on free speech and expression.

What is the Public Domain?

As an aside, public domain is when a work (text, image, sound, video) has been in existence for a certain length of time (say over 100 years); and due to this it loses its copyrighted status and can be used by anyone without it being deemed a copyright infringement.

Public domain “wait-time” can depend on a number of variables but a good rule of thumb is it will remain copyrighted for the life of the author, and 70 years after the author's death (then, for other kinds of works 95 years from first publication or 120 years from first creation, whichever comes first). As many creative types know, there is little in the realm of original ideas, most new concepts are built off previously copyrighted works, and having works enter the public domain is really important.  These public domain works, and works that are licensed to be used under Creative Commons license are and should be used to the extent possible in movies, films, plays, theaters, etc.  As the old saying goes “the more things change the more they stay the same.”

What is a Creative Commons License?

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Using an Image for "News Reporting" under section 107

Top 4 Fair Use Principles for Documentary Filmmakers

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

Principle: In essence, a documentarian can use a work for their film to show the viewers about a certain perspective of critique, such as parody or commentary.

Limitations: When a documentarian uses the copyrighted work for more than just critique and instead uses it as a means to fulfill the audiences want for the original work. Basically, the critical use should not be a substitute for the original.

Example: A filmmaker cannot make a documentary about Looney Toons that is just an hour and a half of snippets from the original show.

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

Principle: A filmmaker does not use the quoted material for its originally intended purpose but a new one, therefore creating new value to the original work.

Limitations: If the documentarians in question can assure these points they will be in the best fighting position in regard to asserting a fair use copyright defense:

  • the material is properly attributed, either through an accompanying on-screen identification or a mention in the film's final credits;
  • to the extent possible and appropriate, quotations are drawn from a range of different sources;
  • each quotation (however many may be employed to create an overall pattern of illustrations) is no longer than is necessary to achieve the intended effect;
  • the quoted material is not employed merely in order to avoid the cost or inconvenience of shooting equivalent footage.

Example: A film using clips from multiple films over a number of years to highlight the change in American culture in regards to clothing aesthetic or race.

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

Principle: Documentary filmmakers will likely capture copyrighted material when filming in in real-life settings, such as talking to strangers on the streets of New York. This should fall under fair use, assuming it is to a reasonable extent.

Limitations: To keep the film within fair use “guidelines” filmmakers should be conscious of these critical points:

  • particular media content played or displayed in a scene being filmed was not requested or directed;
  • incidentally captured media content included in the final version of the film is integral to the scene/action;
  • the content is properly attributed;
  • the scene has not been included primarily to exploit the incidentally captured content in its own right, and the captured content does not constitute the scene's primary focus of interest;
  • in the case of music, the content does not function as a substitute for a synch track (as it might, for example, if the sequence containing the captured music were cut on its beat, or if the music were used after the filmmaker has cut away to another sequence).

Example: A documentarian is on the streets of Los Angeles to get real-life people's perspectives of the War on Drugs and an ad for Coca-Cola is in the background.

  1. Using copyrighted material in a historical sequence

Principle: To convey accurate historical scenes filmmakers must use materials from the time in question. These materials could be music from a certain event, photographs or films, or texts such as diary entries or articles.

Limitations: If a documentarian can follow these parameters below they will likely not be under fire for infringement.

  • the film project was not specifically designed around the material in question;
  • the material serves a critical illustrative function, and no suitable substitute exists (that is, a substitute with the same general characteristics);
  • 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;
  • the use is no more extensive than is necessary to make the point for which the material has been selected;
  • the film project does not rely predominantly or disproportionately on any single source for illustrative clips;
  • the copyright owner of the material used is properly identified

Example: A documentary about World War II that uses certain excerpts from diaries of soldiers or Adolf Hitler, which may be copyrighted.

The bottom line is fair use can be a very close question applying law and fact.  We can help make the determination on your project and can general a “fair use opinion letter” that can help with film financing and distribution.

Attorney Steve® Tips to analyze your Fair Use rights for FREE!!

Contact a California Fair Use Entertainment Lawyer

Our law firm can help film and video makers from San Diego to Orange County, Hollywood, San Francisco, and Silicon Valley . We can help obtain the proper licensing rights for film, music, loops, photographs, trademarked logos, and other copyrighted and trademarked intellectual property belonging to a third party.  You might also be able to negotiate a product placement deal.  Call us at (877) 276-5084 to discuss your project and legal needs or email us through our contact form.

We have offices in San Diego, Santa Monica, Newport Beach, and San Francisco.  We are also licensed to practice law in Arizona as well and have an office in Phoenix for Arizona film and video projects located in Scottsdale and the valley.

About the Author

Steve Vondran

Thank you for viewing our blogs, videos and podcasts. As noted, all information on this website is Attorney Advertising. Decisions to hire an attorney should never be based on advertising alone. Any past results discussed herein do not guarantee or predict any future results. All blogs are written by Steve Vondran, Esq. unless otherwise indicated. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. BSA, SIIA, Siemens, Autodesk, Vero, CNC, VB Conversion and others), torrent internet file-sharing (Strike 3 and Malibu Media), California right of publicity, TV Signal Piracy, and many other types of IP, piracy, technology, and social media disputes. Call us at (877) 276-5084. AZ Bar Lic. #025911 CA. Bar Lic. #232337


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