The Many Meanings of “Fair Use”

So your documentary has commercial interest and high revenue earning potential. And you’ve secured all of the agreements, releases, and licenses for the film, except for one piece of vintage footage that’s not quite in the public domain (material which can be used freely by anyone because it was created before 1923), but it’s “pretty old.” Then there’s that one famous singer who supports charitable causes like the one covered in your documentary, but whom you couldn’t get to “donate” her music, so instead you hire her former back-up singer to impersonate her voice. You think to yourself, “This is all ‘fair use,’ so I don’t really need a release or a license—my documentary is clearly historical and educational,” despite the fact that a major programmer or distributor is interested.

Although under some circumstances “fair use” allows you to use copyrighted work without the consent of the copyright owner (i.e., for reporting the news or educational use such as photocopies for the classroom), the rule should never be relied upon as a means for using someone else’s work without permission. Fair use is not a substitute for proper clearance. It’s a defense to a lawsuit for copyright infringement. Which means that by the time you’ve invoked fair use, you’re probably in the middle of a costly lawsuit.

Take for example The Definitive Elvis, a 16-hour video documentary about the life of Elvis Presley. The project was a $2 million venture. At one point it was available for purchase for $99 retail. But now you can’t rent or buy it anywhere. And that’s because the filmmakers used copyrighted material, including footage of Elvis on “The Ed Sullivan Show.” Instead of paying for various licenses (i.e., paying the owners of the footage $10,000 per minute of footage), Passport Entertainment, the producers/distributors, relied on fair use. Big mistake. The court said no to their fair use argument, and stopped distribution and sale of the documentary. It seems that although a documentary about the King has “biographical,” “newsworthy,” and “historical” value, the clips usage was actually “commercial,” in part because the documentary was never advertised as a “scholarly critique” or “historical analysis.” The court viewed the use more as an attempt to profit from the “entertainment value” of the clips without paying a licensing fee to the copyright owners.

There have been other cases involving fair use, including TNT and the Muhammad Ali film When We Were Kings (1996), Universal Picture’s Twelve Monkeys (1995), and New Line Cinema’s film Seven (1995). Some were ruled in favor of fair use, but the majority were not, and although most of these cases have not involved documentaries, the rules are for the most part applicable to them as well, especially in light of the genre’s increasing commercial appeal. Until the fair use law is changed to favor documentaries by a clear Supreme Court decision or federal legislation, filmmakers should err on the side of caution and always secure releases and licenses.

There are various types of releases and licenses a documentary filmmaker will use or be asked to sign during production. Releases are necessary to avoid claims of Right of Privacy (unconsented use or dissemination of information about an individual’s private life) and Right of Publicity (the right of an individual to control the commercial use of his or her identity, name, voice, or likeness). Personal releases and location releases are generally needed to film individuals and places.

Personal Releases are necessary to secure permission to record and to exploit an individual’s appearance in a documentary, unless the individual is unrecognizable (i.e., part of a crowd of faceless people). A typical release should include:

* the specific rights being granted by the individual (i.e., the right to reproduce, copy, and modify the individual’s name, pseudonym, image, likeness, voice in any media);

* duration and scope (i.e., unrestricted absolute, perpetual, worldwide rights);

* a waiver of rights to safeguard against future claims and lawsuits of defamation, invasion of privacy, and right of publicity;

* the filmmaker’s full and sole ownership of the footage;

* the filmmaker’s discretion to transfer the rights without any encumbrances;

* warranty that the individual is over the age of 18 or parental/guardianship consent if the individual is a minor.

Location Agreements are used any time a documentary filmmaker shoots a scene in property that doesn’t belong to the filmmaker. It could be a home, apartment, gym, school, or grocery store. In addition to some of the points discussed in the Personal Release, the filmmaker should include and remember the following:

* the specific address of the location;

* duration of shoot with date and time, including provisions in case of unexpected delays;

* consent, if needed, to move furniture, fixtures, displays, etc.;

* the money paid, if any, for use of the space;

* if the location is a public area, to research local permitting requirements;

* never presume that a Location Release allows the right to shoot copyrighted material in the background such as artwork, advertisements, etc.

In addition to securing proper releases, the following are some pointers documentary filmmakers should bear in mind:

* Never presume that “acknowledging” or giving “credit” is good enough.

* Review footage carefully to spot all people and objects incorporated in the film.

* Unless you can secure a release or license, make sure that radios or music devices are not playing in the background.

* Turn those televisions off unless you plan on “patching” the image. This applies to scenes where unlicensed material such as photos and paintings are visible even if you think they are not in perfect focus or are obscured.

* Do not use “sound-alikes” in lieu of permission. For example, although not a documentary, it didn’t work for the Ford Motor Company and their advertising agency when they used a Bette Midler sound-alike to imitate her voice for a commercial. The court found that it was a violation of her right of publicity to impersonate her distinctive voice.

* When in doubt, cut it out.

Much has been said about Robert Greenwald’s documentary Outfoxed: Rupert Murdoch’s War on Journalism (2004). Yes, Greenwald used clips, owned by Fox News, to critique what he believed was the network’s bias toward the Right, and Fox didn’t sue him. But had they been, Greenwald had a well-known legal scholar and a law firm prepared to defend him. Most documentary filmmakers, even those with projects that fit squarely within a scholarly critique or historical analysis, can’t afford the luxury of keeping a legal scholar and a qualified litigator on retainer.

Getting permission by way of properly drafted releases and licenses is the way to go. It can raise a production budget, but failure to do so could result in costly litigation including damages or a court order stopping the distribution or exhibition of your documentary. Note that in the Elvis Presley example, the documentary filmmakers’ claim that thousands of units had been shipped to retail outlets and distributors was not enough to discourage the court from rejecting their fair use arguments, and stopping the distribution and further sale of the documentary.