New Fair Use Guidelines for Documentaries May Affect Broader Media Interests
 
February 6, 2006
 

A brand new set of copyright guidelines for documentary filmmakers could directly affect a broad array of media and entertainment companies that acquire individual films and film libraries.

The “Documentary Filmmakers’ Statement of Best Practices in Fair Use” was released on November 18, 2005, after a year-long study of 50 documentary filmmakers by the Center for Social Media at American University. The Statement is intended to bolster the reliance of filmmakers, distributors and insurers on the elusive “fair use” mechanism in the Copyright Act.

The Study, funded in part by the Rockefeller Foundation and The John D. and Catherine T. MacArthur Foundation, disclosed that documentary filmmakers spend increasing amounts of time and money attempting to get permissions from owners of intellectual property they include in their films. This intellectual property commonly includes lyrics and music, commercial signs, names and logos, texts, photographs, video and images.

Clearance difficulties can arise, for example, in films when a car passes by with its stereo blaring a Beatles tune, when the interviewee’s cell phone rings playing a Rolling Stones ring tone during a key interview moment – even when a family sings “Happy Birthday”. A glimpse of a soda-can logo or cigarette-package design could present similar issues. In each instance, while fair use defenses may apply, these songs and trademarks likely are registered with the U.S. Copyright Office or the Patent and Trademark Office, and a careful producer has to consider obtaining, and paying for, the rights to use this intellectual property.

Many media and entertainment companies and insurers have clearance requirements that ultimately decide whether or not a film will see the light of television. The Study found that – because of price considerations, or because rights holders may refuse permission – filmmakers often are forced to alter their films or limit public access to them – for example, overdubbing songs or reshooting scenes to eliminate ambient music. The landmark civil rights documentary “Eyes on the Prize”, broadcast in 1987 on PBS, is unlikely to be shown or sold again in the United States because the rights purchased for the initial broadcast have expired, and current rights holders are asking for larger clearance fees.

Section 107 of the Copyright Act provides for the “fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research is not an infringement of copyright.” The Act, and courts following the Act, point to four factors that must be weighed and considered in detail in a fair use determination:

• The purpose and character of the use

• The nature of the original copyrighted work

• The amount of the copyrighted work that was taken or used in the subsequent work, and

• The effect on the market value of the original work

Not all of these are required to support a decision in any one case, and courts will give different weight to each factor under the specific facts of each case.

In the Statement, documentarians encourage the development of a fair use practice similar to that of historians (who frequently quote others’ works), artists (who reinterpret artistic images) and journalists (who often reference popular film and television works, songs and archival photos.) The Statement defines four specific areas documentary filmmakers consider to be reasonable “fair uses”:

1. employing copyrighted material as the object of social, political or cultural critique (much like a newspaper might review a book and quote from it in the process)

2. quoting copyrighted works of popular culture to illustrate an argument or point (such as using clips from fiction films to show Americans changing attitudes toward race)

3. capturing copyrighted media content in the process of filming something else (Rolling Stones from a car stereo), and

4. using copyrighted material in a historical sequence (selective use of music, films, photographs or words spoken during an event)

As a practical matter, reliance by filmmakers on this sort of fair use standard is meaningless unless media and entertainment companies and their insurers also agree to rely on them rather than continuing to insist on full formal clearances. The Independent Television Service and P.O.V./American Documentary, which airs the P.O.V. documentary series on PBS, endorsed the Statement before its release. How many media and entertainment companies will adopt the broader approach remains to be seen.

For more information, e-mail Robert Labate at robert.labate@hklaw.com or call toll free, 1-888-688-8500.