Sunday, February 15, 2009

Making The Case For Fair Use

Filmmakers became frustrated with the uncertainty of fair use by the beginning of the 21st Century. Under the leadership of Professors Aufderheide and Peter Jazic from American University, documentary filmmakers were brought together to discuss fair use. In meetings across the country, filmmakers discussed the burdens of clearing film clips, music, photos, and other items for their documentaries. They talked about how their creativity was crimped, how their energy and their pocketbooks were drained, and how certain points could not be properly demonstrated cinematically. The two American University professors even documented how some films were not being made and expression was being squelched.

By 2004, the professors had uncovered many instances of films not made, compromises that had to be made, and widespread instances of filmmakers using fair use while hiding the fact from gatekeepers and insurance companies. Their study was aptly entitled Untold Stories.

As a result of these meetings, a consensus was created among documentary filmmakers that came to be expressed in a booklet entitled Documentary Filmmakers' Statement of Best Practices in Fair Use. I should disclose that I was one of the two attorneys in private practice who were invited to join the academic legal scholars on the legal advisory board to this project.

The Statement describes "the actual practice of many documentarians, joined with the views of others about what would be appropriate if they were free to follow their own understanding of good practice...Unfortunately, until now the documentarians who depend on fair use generally have done so quietly, in order to avoid undesired attention. In this statement, documentarians are exercising their free speech rights - and their rights under copyright - in the open."

This statement is organized around four classes of situations that documentary filmmakers regularly confront in making their films. These four classes do not exhaust all the likely situations where fair use might apply; they reflect the most common kinds of situations that documentarians identified at this point. The four classes of situations that documentary filmmakers regularly confront in making their films are:

1. Employing copyrighted material as the object of social, political, or cultural critique.
2. Quoting copyrighted works of popular culture to illustrate an argument or point.
3. Capturing copyrighted media content in the process of filming something else.
4. Using copyrighted material in a historical sequence.

Think of fair use as a spectrum of possibilities, rather than a bright line that provides a definitive "yes" or "no" in all cases. In fact, the courts have specifically said, in case after case, that there is no bright line, that they have to consider all relevant factors in each case. In this way, fair use is like good manners. There are situations where reasonably well-informed practitioners in the field might differ.

The trick is to be sure that your use is as safe as possible. That is to say that your use should have the best chance possible of being found to be a fair use.

Over the years, we have helped many filmmakers find small adjustments that they can make that improve their chances of being found to be a fair use. The most common adjustment is to make clearer the connection between that which is being used and the subject being discussed. Interestingly, this is also one of the hallmarks of good journalism. With such clarifications and the Statement of Best Practices firmly in hand, most filmmakers are in very good shape. Of course, you should consult with competent clearance counsel before sending your film out into the world. The day when a filmmaker can safely make fair use decisions on their own is still a good ways off into the future.

Michael C. Donaldson is an entertainment attorney who has been fighting for independent filmmakers for over thirty years. His book Clearance and Copyright, the third edition of which was just released, is used in over 50 film schools and has become the standard reference book for the industry. Visit:

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