THE STERLING FIRM
A PROFESSIONAL LAW CORPORATION
Justin Sterling, Esq.
*Disclaimer: For informational and educational purposes only. Not to be considered legal advice.
FAIR USE OF COPYRIGHTED MATERIAL IN DOCUMENTARIES AND COMMENTARIES
Hi, my name is Justin Sterling. I am an Attorney and the Founder of The Sterling Firm, A Professional Law Corporation. We are speaking about the Fair Use of Copyrighted Material in Non-Fiction Works, such as Documentaries and Commentaries.
FAIR USE, INSURANCE, LICENSES
What is fair use? Fair Use is a doctrine for determining when a person could use another’s work in their own work without permission. The factors for determining Fair Use have been laid out in Section 107 of the Copyright Act. The Courts apply the Fair Use doctrine on a case-by-case basis based on whether or not it is fair in the given situation.
For many non-fiction works the footage that is necessary is not available without applying the Fair Use doctrine. For this reason, when creating documentaries and other non-fiction works, such as commentaries and critiques, it is very important to obtain Errors and Omissions Insurance. E&O Insurance covers your company, or you individually, for errors in the production that you may make. E&O provides you protection in the case that a mistake happens. It is similar to malpractice insurance for attorneys or professional liability insurance for accountants, architects, and engineers. The best time to purchase the E&O Insurance is before the risk is taken. The policy language should be reviewed by an attorney. Make sure the production is insured.
It is a good practice to at least attempt to obtain a license from the copyright owner to use the copyrighted material. In the legal capacity, a license is another way to say “permission.” As the copyright owner, they are also the holder of exclusive rights, including the right to use the copyrighted work. Permission can be granted for any limited purpose of use of the copyrighted work. Permission can be granted for a price and fee. Many times, creators of many works, images, and films, will not give permission for their work to be used by others or they will want an expensive cost for licensing the use of their work. Particularly, this cripples the creativity of documentaries, because it increases the burdens of time and money in licensing film footage clips, music, and photos. Documentaries largely rely on others’ works because it properly demonstrates certain points cinematically. Unless they can obtain permission by the copyright owners, documentaries are severely hindered.
DOCUMENTARY FILMMAKERS’ STATEMENT OF BEST PRACTICES IN FAIR USE
To better help and assist documentarians, American University conducted studies and a report was issued entitled Documentary Filmmakers’ Statement of Best Practices in Fair Use. This is an essential resource for every documentarian. The Statement makes clear what documentary filmmakers currently regard as reasonable application of the copyright Fair Use doctrine and discusses the four classes of situations where Fair Use may apply. If you are interested in obtaining a copy of the Statement, please contact The Sterling Firm by emailing firstname.lastname@example.org.
The first class of situations is when the documentarian is “employing copyrighted material as the object of social, political, or cultural critique.” In this situation, the use of the copyrighted work is for critical analysis. For example, a documentarian may use quoted material as an illustration of its critique. Criticism is at the core of the First Amendment Freedom of Speech, and Fair Use of others’ creative work is appropriate in this situation so long as the documentarian is analyzing or commenting on the work. The way the documentarian may express commentary can differ, and it may be extensive or slight. However, the use of the copyrighted work should not be so extensive or pervasive so that it becomes the main attraction of the new work and is no longer a function of the documentarian’s critique. Simply put, the copyrighted material cannot take the spotlight away from the commentary itself.