Beg, Borrow, or Steal? Deciphering Fair Use for Filmmakers
Understanding Fair Use can save documentary filmmakers time and money.February 9th, 2009 | Jen Swanson
David Van Taylor first engaged questions of Fair Use when he was working on his film Dream Deceivers in 1990, a documentary that explored the lawsuit filed against the heavy-metal band Judas Priest by the family of James Vance, a teenager who tried to commit suicide after smoking marijuana and listening to the group's lyrics. The film incorporated copyrighted music and clips. Van Taylor cleared everything except one clip for broadcast and educational distribution. But the biggest rights holder, Sony Music, denied him home video rights altogether, so Van Taylor could not distribute Dream Deceivers on video.
It wasn't until 2005, however, after reading an article in The Independent (read the article here), that Van Taylor first began to consider Fair Use, the First Amendment clause that allows new artists to borrow from copyrighted materials under certain circumstances. "The message was that this is a very gray area and you don't really know what you're getting into," says Van Taylor.
As the years went on, Van Taylor developed his own sense of what was legally correct, as did many others in the field. "There was a lot of stuff filmmakers did, but no one talked about it," says Van Taylor. "They didn't really want to know."
Until November 2005 that is, when The Documentary Filmmakers Statement of Best Practices was published by Patricia Aufderheide and Peter Jaszi, both professors and directors at American University, to provide filmmakers with basic Fair Use guidelines based on the input of experienced filmmakers from across the country.
“The creative community defined it; we really just facilitated the conversation,” says Aufderheide, who, with Jaszi, hosted a series of open-format meetings with 45 filmmakers across the country to discuss how documentarians understood and exercised their Fair Use rights. “We saw a lack of Fair Use limiting creativity, and filmmakers submitting not only to censorship, but to self-censorship,” says Aufderheide. The meetings also included discussions of which kinds of Fair Use made them uncomfortable.
From those conversations, the duo went on to develop the The Documentary Filmmakers Statement of Best Practices to clarify Fair Use as it applied to filmmakers and outline situations in which Fair Use may apply. This is not an exhaustive list, but only four of the most common Fair Use scenarios. (Click here to read entire statement.)
“Employing copyrighted material as object of social, political or cultural critique.” Documentary makers may need to borrow text, image, or sound for the purpose of critical analysis or critique, much like a writer may borrow a few lines of text for the purpose of review. This includes direct commentary and parody, and it doesn’t matter if the resulting commentary is negative or positive as long as it's being used to make a point.
“Quoting copyrighted works of popular culture to illustrate an argument or point.” The copyrighted work illustrates a point the filmmaker is trying to make, similar to how a journalist would incorporate quotes to illustrate a point. The filmmaker may not quote the material for its original purpose but for a new one and that work must be credited.
“Capturing copyrighted media content in the process of filming something else.” The filmmaker unintentionally catches incidental sounds or images, such as music playing on the radio in the background or a family singing the copyrighted “Happy Birthday” song. The copyrighted music can’t be played after the segment has ended.
“Using copyrighted material in a historical sequence.” Material can be used to tell a historical narrative if the filmmaker can prove the material is the best or only way to make the point. S/he must also prove that the project wasn’t designed around the original material and the copyright owner must be properly credited.
“Fair Use is a way of thinking,” says Aufderheide. “Not a set of rules. It depends on context. It’s about logic.” She continues, “A lawyer doesn’t always have to be involved.”
The Statement has had a profound industry effect, despite its brief existence, and has been accepted by filmmakers, broadcasters, copyright lawyers, and insurers as the new industry standard. In turn, it's paved the way for films that might never have been seen publicly, or even finished, before, such Hip Hop: Beyond Beats and Rhymes, This Film Is Not Yet Rated, and The Trials of Darryl Hunt. "Each film applied to Sundance after reading the Statement. They wouldn’t have submitted if they were unsure of their rights, or how low the risk [of a lawsuit] was,” says Aufderheide. Sundance led to television screenings by networks that had also read and approved the Statement, such as PBS/ITVS's Independent Lens, the IFC cable channel, and HBO.
"It's been incredible," says Gordon Quinn, executive producer of Kartemquin Films. What Peter and Pat have done has been a ssea-level change for our industry and it happened in a relatively short period of time."
Quinn has produced a number of films that have incorporated Fair Use, including The New Americans, a 2004 production that follows a diverse group of immigrants and refugees as they start new lives in America, and Terra Incognita. "The New Americans borrowed a clip that was clearly Fair Use," says Quinn. "We would have used it 20 years ago, before the big media companies got involved," he says, the frustration evident in his voice. "We would be more than happy to fight them on it," he adds, but explains that lawsuit-wary broadcasters and insurance companies still wouldn't have accepted the film, so there wouldn't have been much point.
Terra Incognita is a feature length documentary that follows the story of Dr. Jack Kessler, the current chair of Northwestern University's Department of Neurology and Clinical Neurological Sciences, on his quest to cure spinal cord injuries using the controversial embryonic stem cell research. Terra Incognita used a scene from Woody Allen's Sleeper and a fair amount of media and news clips. However, each clip was critical in telling the story by documenting the social culture of the time. "We needed Fair Use to tell the story," says Quinn.
"When Pat first approached me about this, she laid out the strategy. She said we didn't have to rewrite the legislation or go to Congress. All we had to do was assert our rights," says Quinn. The Statement is important, Quinn explains, because filmmakers need access to existing works and to protect their final projects. "Fair Use is crucial to the free flow of information," he concludes. "That's why it's in the law."
Van Taylor agrees. "What's interesting about the Statement is that we were wearing two hats when we put this together," says Van Taylor. "We needed access to copywrited materials, but we didn't want our final works to be violated."
Documentary filmmakers work under tighter copyright constraints than journalists, playwrights, academic writers and many other artists, although each group is entitled to exercise Fair Use. One reason is that filmmakers haven't fully asserted their rights, largely for fear of lawsuit or budget-breaking clearance costs, which has allowed large media conglomerates and rights-holders to dominate the field.
Fair Use can be considered a "use it or lose it" concept. For example, journalists borrow copyrighted images and music so frequently it’s become accepted journalistic practice. Filmmakers need to also exercise their Fair Use rights. "The analogy to text was interesting," says Van Taylor. "The conventions were completely different. There are things writers quote in a certain way that makes you realize how limiting some of our constraints would be to speech. You would never do that in film."
"It was a smart intervention in the field with tremendous effect," Van Taylor continues. Before the Statement, he frequently received calls from less experienced filmmakers asking for Fair Use clarifications. "Some asked if they had to get clearance from Northface on that logo tee-shirt that someone was wearing," Van Taylor sighs. "It goes to show big corporations can control us in the most arbitrary ways."
Three years after the Statement's publication, it seems the power has shifted. The Statement's industry-wide acceptance has led broadcasters and insurers to accept and distribute more films that clearly exercise Fair Use.
"There used to be quite a bit of 'don't ask, don't tell,’" Quinn confides. Filmmakers hesitated to discuss Fair Use among themselves, in case their borrowed clips weren't in compliance, while insurers asked filmmakers to sign letters saying all rights had been cleared, and hesitated to ensure films that even flirted with Fair Use.
"It's good to know where the law is," says Van Taylor. Pre-Statement, his production house had to table lots of great ideas if the budget seemed prohibitive. Now he can pursue those projects using the Fair Use guidelines. "We could go to a distributor and say here's the budget and we can bring you insurance because the insurers are willing to take the bet."
"It's not a magic wand and doesn't solve all our problems," says Quinn. "We still need to clear stuff, but [the Statement] is tremendously important. Clearance culture was so pervasive." The Statement has also served as a negotiating tool for filmmakers. Pre-Statement, Quinn would have paid $100,000 for clearance rights in The New American. Post-Statement, he paid $5,000.
Quinn says he often consults the original artist as a consideration, even if he knows he could borrow said clip under Fair Use. "Sometimes it's a fine line. We wanted to use Puff The Magic Dragon in one of our films. Some of our lawyers said it was Fair Use, others weren’t so sure, so I approached Peter Yarrow [who wrote and performed the song]. At first he said no, I never license that song, but then I showed him the clip. He liked what we were trying to do and gave us permission. He basically said, what can you pay? Usually, if you're using the copyrighted material true to the original artist's spirit or vision, it's okay. Not always, but in many cases. It's working with the big media companies that becomes a problem."
If Yarrow had said no, would he have used the copyrighted material anyway? "We would have rearranged some stuff and it would have undercut the film dramatically," Quinn says. Note the Statement allows that a filmmaker can still claim Fair Use even if he/she has requested permission of the original artist and that request has been denied.
"The booklet is a resource," Quinn advises new filmmakers. "Get a copy and get to know it."
"I'm very inspired to be part of the mini-social movement by documentarians," says Van Taylor, who was contacted recently by a distributor about Dream Deceivers. The distributor had read the Statement and was now ready to speak with Van Taylor about video distribution. "There are films made now that couldn't be made before, and filmmakers are finally able to come out of the closet and openly discuss Fair Use to proceed in a logical and rational manner."
Aufderheide compares Fair Use to freedom of speech. “You don’t have a script for how to speak, but you use your judgment. It’s counterintuitive,” she continues, although she concedes that the only way to be absolutely safe from potential lawsuits is to get a license on everything. “Fair Use isn’t absolute security, but it’s a guideline to working in the comfort zone,” she says. “There’s a chance when you walk out the door today you’ll be hit by a car. But, there are certain things you can do to reduce that risk. Chances are good you’ll come home alive.”