A few weeks back, we wrote about what DocNYC taught us about sales agents. Today, we revisit that day of endless knowledge to share what we learned about fair use.
DocNYC brought in fair use experts Peter Jaszi (Glushko-Samuelson Intellectual Property Law Clinic, American University Washington College of Law) and Julie Ahrens (Center for Internet & Society, Stanford Law School) for a fantastic panel moderated by Dan Satorius that gave some hope to doc filmmakers with great ideas and limited resources.
They started off by defining fair use. I jotted this down in my notes, but, for a better explanation of what fair use is, let’s turn to Stanford Law School, which writes: “Fair use is any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work.” The Center for Internet & Society at Stanford Law School goes further, discussing what fair use allows filmmakers to do: “Fair use doctrine… makes it possible for documentary filmmakers to take on subjects that would otherwise be difficult or impossible to discuss.” Why might you need to rely on this doctrine? Any number of reasons. Perhaps you need to use material from a classic, copyrighted film, but the studio’s licensing fees are triple your budget. Or maybe you are using copyrighted material which the owner refuses to release for the film, no matter the licensing fees. In both situations, you could potentially turn to fair use to clear the material you need.
Before going any further, I should state that, while the panel dropped a ton of knowledge on the crowd about how to determine if you have material that may be usable under fair use, it was made abundantly clear that you shouldn’t just turn to your friend who’s, say, an employment lawyer, to make this determination. Even if you have access to an attorney who’s practiced fair use law in the past, they recommended hiring one who is currently practicing in this field. Were they trying to drum up business? Perhaps. But in a field that is constantly changing, it’s not a bad idea to heed this advice.
So, how is fair use determined? I’m glad you asked. There are four questions you need to answer:
1. Is the use primarily commercial or non-commercial?
If the answer is non-commercial, then you have a good case for fair use. If it’s primarily commercial, don’t instantly think you can’t have a fair use ruling in your favor. The panel unanimously agreed that this distinction has grown less important over the years.
2. Is the original work primarily creative or non-creative?
This question seems to favor docs: if you’re making a factual, historical piece and you need to use copyrighted material to illustrate your story, you’re in good shape.
3. How much material are you taking from the original?
In general, they stated that the less you use, the better off you’re going to be. This question shouldn’t just be answered in terms of the quantitative amount you take, but also the qualitative. In other words, are you taking the heart of the work? They used the example of taking the hook from a song potentially being problematic because you’re taking the most recognizable part of the work. Of course, they didn’t say this would result in a ruling against you, but your argument for fair use would have to be stronger in other areas.
4. Is it transformative?
This question was uniformly agreed upon as being the most important one to answer. Are you using the copyrighted material in such a way that you’re adding value to the original? Are you repurposing it for a new use? If you’re using the copyrighted material to replace the original in the marketplace, you’re in trouble. But if you’re using it in a new way, you have a good case for fair use. They kept hammering home how important the transformative nature was, saying that if it’s transformative and the amount you use is appropriate, the economic impact is irrelevant.
One point they kept making was that the story of why you want to use certain copyrighted material is very important. If you have compelling reasons behind your use of copyrighted material, reasons that depict the transformative nature of your use, you’ll have a strong case.
There is obviously much, much more to know about fair use and there are plenty of resources out there that explain it much better than I can. What I took away from this, however, is that there is hope for doc filmmakers when it comes to clearing copyrighted material that seems impossible to get the rights to. If you’re looking for more information, I’d encourage you to stop by a few sites that have become very important to us:
One final thought: if you want to work with a fair use attorney, but don’t have the money, the Center for Internet and Society at Stanford Law School does pro bono work. Check out their site above to learn more.