Art doesn’t come from nowhere. Cultural progress depends on the ability of artists to make reasonable use of preexisting material, and that includes copyrighted material.
This is especially true for filmmakers who operate in today’s media-saturated environment.
In order to be able to comment on or depict our environment, filmmakers need reasonable access to other people’s copyrighted material. “Fair use” exists to ensure that this access remains available and to prevent copyright from becoming an instrument of censorship by default.
Fair use allows documentary filmmakers to use copyrighted material without payment or require permission in certain situations. It acts as a defense against legal claims of copyright infringement. It’s important to note this – “fair use” is a defense against copyright infringement, meaning that, though you are technically infringing on someone’s copyright by using their content in your work, you should not be held liable because of the fair use doctrine. outlines the various situations in which you do not need to get the copyright owner’s permission to use their material, including but not limited to:
- Criticism and commentary
- New reporting
- Research and scholarship
- Non-profit educational uses
- Referencing historical events
Fair use does not allow you to steal other people’s work wholesale. Rather, fair use allows you to use existing copyrighted content in a way that provides new value to the original and to create something new overall.
Here are some important things to know about copyrights and fair use. Knowing these things will enable you to use copyrighted material in the most legal and effective way in your documentary film:
1. Fair Use is Considered On Case-By-Case Basis
It is important to know that fair use is applied on a case-by-case basis. This means that there are no bright line rules and that each case will be judged on its own merits.
In fact, the US Supreme Court has made it clear that all facts must be considered in any given copyright infringement case that involves use.
The courts apply a four-factor test in determining each instance fair use: The purpose and character of your use (is it “transformative” from the copyrighted work); the nature of the copyrighted work; the amount and substantiality of the portion used compared to the whole copyrighted work; the effect on the commercial market for the copyrighted work.
2. Try to Get Permission
It is always safer to attempt to get permission from the original copyright owner before using a copyrighted work, as this will demonstrate good faith on your part to avoid infringing on the original copyright. It can also avoid a costly lawsuit, should it come to that.
3. Criticism and Commentary are OK
It can often be very difficult to determine if your use of a copyrighted work constitutes fair use. However, there are two popular categories of fair use that are easier to use than others:
- Criticism – making an argument
- Commentary – expressing an opinion
If your use of copyrighted material is for the purpose of criticism or commentary, and if it otherwise meets the requirements for the four-factor test, it likely qualifies as fair use.
4. Be Illustrating a Point
You should always have a good reason for using the copyrighted material. For instance, to provide an example that supports your argument, or to demonstrate what you are trying to say. Fair use shouldn’t encourage you to use copyrighted material in your film just because you like it or because it is entertaining.
5. Make Your Point Clear
Be sure that the point you are illustrating is clear. Everyone should be able to understand why you are using the copyrighted material in your film, without you having to explain it to them.
6. Use Only What You Need
You shouldn’t use any more of a copyrighted work than is relevant to make your point. Keep it as short as possible.
7. Consult With An Attorney
Keep in mind that fair use is a fairly complicated concept, and it is better to rely upon releases and/or licenses when using the copyrighted materials of others. So, to be safe, you should be sure to consult with an experienced, intellectual property and/or entertainment law attorney before using anyone else’s copyrighted material in your films.
TIPS Group: Intellectual Property and Entertainment Attorneys
There are several ways to obtain clearances to include copyrighted material in your documentary film. An experienced, intellectual property and/or entertainment law attorney can explain how to obtain the necessary clearances and, if necessary, offer an opinion as to whether your use of the copyrighted material can be considered to be “fair.” To consult with an experienced intellectual property and/or entertainment law attorney, contact TIPS Group.