documentary filmmakers statement of best practices in fair use - association of independent video

7/30/2019 Documentary Filmmakers Statement of Best Practices in Fair Use - Association of Independent Video

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Best

Practices

in Fair

Use

Documentary Filmmakers Statement of

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Documentary Filmmakers

statement oF Best Practicesin Fair use

By the Association o Independent Video and

Filmmakers, Independent Feature Project,

International Documentary Association,

National Alliance or Media Arts and Culture,

and Women in Film and Video (Washington,

D.C., chapter),

in consultation with the Center or SocialMedia in the School o Communication at

American University and the Program on

Intellectual Property and the Public Interest in

the Washington College o Law at American

University,

and endorsed by Arts Engine, Bay Area Video

Coalition, CINE, Doculink, Electronic Arts

Intermix, Grantmakers in Film and Electronic

Media, Full Frame Documentary Festival,Independent Television Service, National Video

Resources, P.O.V./American Documentary,

University Film and Video Association, Video

Association o Dallas, and Women Make Movies.

This Statement o Best Practices in Fair Use makes

clear what documentary flmmakers currently

regard as reasonable application o the copyright

air use doctrine. Fair use expresses the core

value o ree expression within copyright law. The

statement clarifes this crucial legal doctrine, to

help flmmakers use it with confdence. Fair use is

shaped, in part, by the practice o the proessional

communities that employ it. The statement is

inormed both by experience and ethical principles.

It also draws on analogy: documentary flmmakers

should have the same kind o access to copyrighted

materials that is enjoyed by cultural and historical

critics who work in print media and by newsbroadcasters.

PreamBle

This Statement o Best Practices in Fair Use

is necessary because documentary lmmakers

have ound themselves, over the last decade,

increasingly constrained by demands to clear

rights or copyrighted material. Creators in other

disciplines do not ace such demands to the

same extent, and documentarians in earlier eras

experienced them less oten and less intensely.

Today, however, documentarians believe that

their ability to communicate eectively isbeing restricted by an overly rigid approach to

copyright compliance, and that the public suers

as a result. The knowledge and perspectives that

documentarians can provide are compromised

by their need to select only the material that

copyright holders approve and make available at

reasonable prices.

At the same time, documentarians are themselves

copyright holders, whose businesses depend on

the willingness o others to honor their claims

as copyright owners. They do not countenance

exploitative or abusive applications o air use,

which might impair their own businesses or

betray their work.

Thereore, documentarians through their

proessional organizations, supported by an

advisory board o copyright experts, now oerthe statement that ollows.

BackgrounD

Fair use is a key part o the social bargain at the

heart o copyright law, in which as a society we

concede certain limited individual property rights

to ensure the benets o creativity to a living

culture. We have chosen to encourage creators

by rewarding their eorts with copyright. To

promote new cultural production, however,

Issued November 18, 2005DoCuMeNtAry FIlMMAkers stAteMeNt oFBest Practices in Fair Use

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it also is important to give other creators

opportunities to use copyrighted material whenthey are making something new that incorporates

or depends on such material. Unless such uses are

possible, the whole society may lose important

expressions just because one person is arbitrary or

greedy. So copyright law has eatures that permit

quotations rom copyrighted works to be made

without permission, under certain conditions.

Fair use is the most important o these eatures.

It has been an important part o copyright lawor more than 150 years. Where it applies, air

use is a right, not a mere privilege. In act, as

the Supreme Court has pointed out, air use

helps reconcile copyright law with the First

Amendment. As copyright protects more works

or longer periods, it impinges more and more

directly on creative practice. As a result, air use is

more important today than ever beore.

Creators benet rom the act that the copyright

law does not exactly speciy how to apply air

use. Creative needs and practices dier with the

eld, with technology, and with time. Instead,

lawyers and judges decide whether an unlicensed

use o copyrighted material is air according to

a rule o reason. This means taking all the acts

and circumstances into account to decide i an

unlicensed use o copyright material generates

social or cultural benets that are greater thanthe costs it imposes on the copyright owner. Fair

use is fexible; it is not uncertain or unreliable. In

act, or any particular eld o critical or creative

activity, such as documentary lmmaking,

lawyers and judges consider proessional

expectations and practice in assessing what is

air within the eld. In weighing the balance

at the heart o air use analysis, courts employ a

our-part test, set out in the Copyright Act. Indoing so, they return again and again to two key

questions:

o Did the unlicensed use transorm

the material taken rom thecopyrighted work by using it

or a dierent purpose than the

original, or did it just repeat the

work or the same intent and

value as the original?

o Was the amount and nature o

material taken appropriate

in light o the nature o the

copyrighted work and o the use?

Among other things, both questions address

whether the use will cause excessive economic

harm to the copyright owner.

I the answers to these two questions are

armative, a court is likely to nd a use air.

Because that is true, such a use is unlikely to be

challenged in the rst place. Documentary lms

usually satisy the transormativeness standardeasily, because copyrighted material is typically

used in a context dierent rom that in which it

originally appeared. Likewise, documentarians

typically quote only short and isolated portions

o copyrighted works. Thus, judges generally

have honored documentarians claims o air

use in the rare instances where they have been

challenged in court.

Another consideration underlies and infuences

the way in which these questions are analyzed:

Whether the user acted reasonably and in

good aith, in light o general practice in his or

her particular eld. In the uture, lmmakers

ability to rely on air use will be urther

enhanced by the Statement o Best Practices in

Fair Use that ollows. This statement serves as

evidence o commonly held understandings in

documentary practice and helps to demonstratethe reasonableness o uses that all within its

principles.

DoCuMeNtAry FIlMMAkers stAteMeNt oFBest Practices in Fair Use


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Documentarians nd other creator groups

reliance on air use heartening. For instance,historians regularly quote both other historians

writings and textual sources; artists reinterpret

and critique existing images (rather than merely

appropriating them); scholars illustrate cultural

commentary with textual, visual, and musical

examples. Equally important is the example o

the news media: air use is healthy and vigorous

in daily broadcast television, where reerences

to popular lms, classic TV programs, archival

images, and popular songs are constant and

routinely unlicensed.

The statement that ollows describes the actual

practice o many documentarians, joined

with the views o others about what would be

appropriate i they were ree to ollow their own

understanding o good practice. In making lms

or TV, cable, and theaters, documentarians who

assert air use oten meet with resistance. All toorequently they are told (oten by nonlawyers)

that they must clear everything i they want

their work to reach the public. Even so, some

documentarians have not been intimidated.

Unortunately, until now the documentarians

who depend on air use generally have done so

quietly, in order to avoid undesired attention.

In this statement, documentarians are exercising

their ree speech rightsand their rights under

copyrightin the open.

This statement does not address the problems

that result rom lack o access to archival

material that is best quality or the only copy.

The statement applies to situations where the

lmmaker has ready access to the necessary

material in some orm.

The statement also does not directly address the

problem o orphan worksworks presumably

copyrighted but whose owners cannot be located

with reasonable eort. Generally, it should be

possible to make air use o orphan works on thesame basis as clearly sourced ones. Sometimes,

however, lmmakers also may wish to use

orphan works in ways that exceed air use. A

more comprehensive solution or orphan works

may soon be provided through an initiative

spearheaded by the U.S. Copyright Oce (or

more inormation, see www.copyright.gov/

orphan).

This statement nally does not concern reeusesituations when documentarians never

need to clear rights. Examples o types o ree

use are available in documents at centerorsocial

media.org/airuse.

the statement

This statement recognizes that documentary

lmmakers must choose whether or not to rely

on air use when their projects involve the use o

copyrighted material. It is organized around our

classes o situations that they conront regularly

in practice. (These our classes do notexhaust

all the likely situations where air use might

apply; they refect the most common kinds o

situations that documentarians identied at this

point.) In each case, a general principle about the

applicability o air use is asserted, ollowed by

qualications that may aect individual cases.

The our classes o situations, with their

inorming principles and limitations,

ollow on the next page.

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One:eMPloyING CoPyrIGhteD

MAterIAl As the objeCt oF soCIAl,PolItICAl, or CulturAl CrItIque

DescriPtiOn: This class o uses involves

situations in which documentarians engage in

media critique, whether o text, image, or sound

works. In these cases, documentarians hold the

specic copyrighted work up or critical analysis.

PrinciPle: Such uses are generally permissible

as an exercise o documentarians air use rights.This is analogous to the way that (or example)

a newspaper might review a new book and

quote rom it by way o illustration. Indeed, this

activity is at the very core o the air use doctrine

as a saeguard or reedom o expression. So long

as the lmmaker analyzes or comments on the

work itsel, the means may vary. Both direct

commentary and parody, or example, unction

as orms o critique. Where copyrighted materialis used or a critical purpose, the act that the

critique itsel may do economic damage to the

market or the quoted work (as a negative book

review could) is irrelevant. In order to qualiy

as air use, the use may be as extensive as is

necessary to make the point, permitting the

viewer to ully grasp the criticism or analysis.

limitatiOns: There is one general qualication

to the principle just stated. The use should notbe so extensive or pervasive that it ceases to

unction as critique and becomes, instead, a way

o satisying the audiences taste or the thing

(or the kind o thing) critiqued. In other words,

the critical use should not become a market

substitute or the work (or other works like it).

tWO:quotING CoPyrIGhteD

Works oF PoPulAr Culture toIllustrAte AN ArGuMeNt or PoINt

DescriPtiOn: Here the concern is with material

(again o whatever kind) that is quoted not because

it is, in itsel, the object o critique but because

it aptly illustrates some argument or point that

a lmmaker is developingas clips rom ction

lms might be used (or example) to demonstrate

changing American attitudes toward race.

PrinciPle: Once again, this sort o quotation

should generally be considered as air use. The

possibility that the quotes might entertain

and engage an audience as well as illustrate

a lmmakers argument takes nothing away

rom the air use claim. Works o popular

culture typically have illustrative power, and in

analogous situations, writers in print media do

not hesitate to use illustrative quotations (bothwords and images). In documentary lmmaking,

such a privileged use will be both subordinate to

the larger intellectual or artistic purpose o the

documentary and important to its realization.

The lmmaker is not presenting the quoted

material or its original purpose but harnessing

it or a new one. This is an attempt to add

signicant new value, not a orm o ree riding

the mere exploitation o existing value.

limitatiOns: Documentarians will be best

positioned to assert air use claims i they assure

that:

o the material is properly attributed,

either through an accompanying

on-screen identication or a mention in

the lms nal credits;

o to the extent possible and appropriate,quotations are drawn rom a range o

dierent sources;



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o each quotation (however many may be

employed to create an overall pattern oillustrations) is no longer than is necessary

to achieve the intended eect;

o the quoted material is not employed

merely in order to avoid the cost or

inconvenience o shooting equivalent

ootage.

three:CAPturING CoPyrIGhteDMeDIA CoNteNt IN the ProCess oF

FIlMING soMethING else

DescriPtiOn: Documentarians oten record

copyrighted sounds and images when they are

lming sequences in real-lie settings. Common

examples are the text o a poster on a wall, music

playing on a radio, and television programming

heard (perhaps seen) in the background. In the

context o the documentary, the incidentallycaptured material is an integral part o the

ordinary reality being documented. Only by

altering and thus alsiying the reality they lm

such as telling subjects to turn o the radio,

take down a poster, or turn o the TVcould

documentarians avoid this.

PrinciPle: Fair use should protect documentary

lmmakers rom being orced to alsiy reality.

Where a sound or image has been capturedincidentally and without prevision, as part o an

unstaged scene, it should be permissible to use it,

to a reasonable extent, as part o the nal version

o the lm. Any other rule would be inconsistent

with the documentary practice itsel and with

the values o the disciplines (such as criticism,

historical analysis, and journalism) that inorm

reality-based lmmaking.

limitatiOns: Consistent with the rationale or

treating such captured media uses as air ones,

documentarians should take care that:

o particular media content played or

displayed in a scene being lmed was notrequested or directed;

o incidentally captured media content

included in the nal version o the lm is

integral to the scene/action;

o the content is properly attributed;

o 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 scenes

primary ocus o interest;

o in the case o music, the content does

not unction as a substitute or a synch

track (as it might, or example, i the

sequence containing the captured music

were cut on its beat, or i the music were

used ater the lmmaker has cut away toanother sequence).

DescriPtiOn: In many cases the best (or even the

only) eective way to tell a particular historical

story or make a historical point is to make

selective use o words that were spoken during

the events in question, music that was associatedwith the events, or photographs and lms that

were taken at that time. In many cases, such

material is available, on reasonable terms, under

license. On occasion, however, the licensing

system breaks down.

PrinciPle: Given the social and educational

importance o the documentary medium,

air use should apply in some instances o

this kind. To conclude otherwise would be todeny the potential o lmmaking to represent

history to new generations o citizens. Properly

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FOUr: usING CoPyrIGhteD MAterIAl INA hIstorICAl sequeNCe


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conditioned, this variety o air use is critical

to ullling the mission o copyright. Butunless limited, the principle also can deeat

the legitimate interests o copyright owners

including documentary lmmakers themselves.

limitatiOns: To support a claim that a use o

this kind is air, the documentarian should be

able to show that:

o the lm project was not specically

designed around the material in question;

o the material serves a critical illustrative

unction, and no suitable substitute exists

(that is, a substitute with the same general

characteristics);

o the material cannot be licensed, or the

material can be licensed only on terms

that are excessive relative to a reasonable

budget or the lm in question;

o the use is no more extensive than is

necessary to make the point or which

the material has been selected;

o the lm project does not rely predominantly

or disproportionately on any single source

or illustrative clips;

o the copyright owner o the material used

is properly identied.

Fair use in other situationsFaceD By Documentarians

The our principles just stated do not exhaust the

scope o air use or documentary lmmakers.

Inevitably, actual lmmaking practice will

give rise to situations that are hybrids o those

described above or that simply have not beenanticipated. In considering such situations,

however, lmmakers should be guided by the

same basic values o airness, proportionality, and

reasonableness that inorm this statement. Wherethey are condent that a contemplated quotation

o copyrighted material alls within air use, they

should claim air use.

some commonmisunDerstanDings aBoutFair use

As already indicated, two goals o the preceding

statement are to encourage documentarians to

rely on air use where it is appropriate and to

help persuade the people who insure, distribute,

and program their work to accept and support

documentarians in these choices. Some common

errors about air use and its applicability may

stand in the way o accomplishing these goals.

Briefy, then, here are some correctives to these

misunderstandings:

o Fair use need not be exclusively high-

minded or educational in nature.

Although nonprot or academic uses

oten have good claims to be considered

air, they are not the only ones. A new

work can be commercialeven highly

commercialin intent and eect and

still invoke air use. Most o the cases in

which courts have ound unlicensed uses

o copyrighted works to be air have

involved projects designed to make

money, including some that actually have.

o Fair use doesnt have to be boring.A use is no less likely to qualiy as a air

one because the lm in which it occurs

is eective in attracting and holding an

audience. I a use otherwise satises the

principles and limitations described inthe Statement o Best Practices in Fair

Use, the act that it is entertaining or



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emotionally engaging should be irrelevant

to the analysis.

oA documentarians ailed eort to clear

rights doesnt inhibit his or her ability

to claim air use with respect to the use

in question. Everyone likes to avoid

confict and reduce uncertainty.

Oten, there will be good reasons to seek

permissions in situations where they may

not literally be required. In general, then,

it never hurts to try, and it actually can

help demonstrate the lmmakers good

aith. And sometimes (as in connection

with Principle Four) it can be critically

important.

legal aDvisory BoarD

Pf J e. c

Georgetown University Law Center

Washington, D.C.

m c. Dd, eq.

Donaldson & Hart

Los Angeles, Caliornia

Pf m J. md

University o Pittsburgh School o Law

Pittsburgh, Pennsylvania

g c. P, eq.

Patterson Belknap Webb & Tyler

New York, New York

J. sp sppd, eq.

Cowan, DeBaets, Abrahams & Sheppard

New York, New York

authoring organizations

a f idpd vd d

F (aivF)

Works to increase creative and proessional

opportunities or independent video and

lmmakers and to enhance the growth o

independent media by providing services,

advocacy, and inormation.

idpd F Pj (iFP)

Fosters a sustainable inrastructure that supports

independent lmmaking and ensures that the

public has the opportunity to see lms that

more accurately refect the ull diversity o the

American culture.

i D a (iDa)

Promotes nonction lm and video around

the world by supporting and recognizing theeorts o documentary lm and video makers,

increasing public appreciation and demand

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or the documentary, and providing a orum

or documentary makers, their supporters, andsuppliers.

n a f md a d c

(namac)

Provides education, advocacy, and networking

opportunities or the independent media eld.

W F d vd (WiFv),

W, D.c., cp

Works to advance the proessional developmentand achievement or women working in all areas

o lm, television, video, multimedia, and related

disciplines.

acaDemic consultingorganizations

c f s md

Directed by Proessor Pat Auderheide, showcases

and analyzes media or social justice, civil society

and democracy, and the public environment that

nurtures them, in the School o Communication

at American University in Washington, D.C.

P i Pp d

Pb i

Directed by Proessor Peter Jaszi, sponsors events

and activities designed to promote awareness o

the social, economic, and cultural implications odomestic and international intellectual property

law, in the Washington College o Law at

American University.

FunDers

The Rockeeller Foundation

The John D. and Catherine T. MacArthur

Foundation

Additional support rom:

Grantmakers in Film and Electronic Media



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An equal opportunity, armative action university. UP07-118


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4400 Massachusetts Ave., NWWashington, DC [email protected]

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documentary filmmakers statement of best practices in fair use - association of independent video

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