Fair Use: Doc-makers get specific

Steve Behrens

The hallmarks of a just and civil society reflect the values of artistic freedom and the rights of free expression. Increasingly these rights are threatened by the "clearance culture" that is found in most creative industries and assumes that almost no quotation can be used without permission from the owner. Fair Use is an important yet often misunderstood legal right. The following article explains in non-legalese terms, what the actual best practices are relative to invoking Fair Use and how one sector of our creative culture, documentary filmmakers — the cultural historians of our times — are encouraged to take full advantage of this crucial part of the copyright system.

Fidelma McGinn
Executive Director, Artist Trust

On a Friday afternoon last fall, things changed for producers who need to use somebody else's footage and music in their documentaries.

Clearing rights may still cost a lot and take too much time, as in the past, but Patricia Aufderheide and Peter Jaszi believe producers now have a solid rationale for not paying excessive and confounding fees for copyrighted materials in certain cases.

On November 18, 2005, the Association of Independent Video and Filmmakers, the Independent Documentary Association, public TV's Independent Television Service and the series P.O.V., and other media groups endorsed a Statement of Best Practices defining four kinds of situations when a producer, under the “fair use” provisions of copyright law, need not pay for a film clip, a shot of a painting or a snatch of music.

Aufderheide, director of the Center for Social Media at American University in Washington, D.C., and Jaszi, an intellectual property expert at the university's law school, convened groups of experienced filmmakers around the country to look closely at the producers' (and their lawyers') working definition of fair use.

The statement hammered out by producers contains none of the outrage of many Internet-generation consumers who thumb their noses at copyright laws. Documentary makers, after all, want to protect their own work from piracy and immediate devaluation.

Because the statement is based on a fair-use definition consistent with recent court rulings and filmmakers' actual fair-use decisions that weren't challenged by rights owners, it should prove a secure guide for producers, Jaszi said.

Suits over fair use are rare anyway, he said, and almost always decided in favor of producers, but the statement would discourage marginal lawsuits because a judge would routinely determine whether the producer acted reasonably and in good faith within general practice in the field. That's what this statement describes.

Michael C. Donaldson, general counsel to the International Documentary Association, copyright textbook author and an advisor to the project, said publishing the statement is a “giant leap” for producers. He hopes it will reintroduce the idea of fair use to program decision-makers and other “nervous folk who want much more [copyright clearance] than the courts require.”

“What all these people need is less ambiguity,” says Aufderheide. The statement aims to help on that score.

The Documentary Filmmakers' Statement of Best Practices in Fair Use highlights the most common situations where producers have fair-use rights:

• “Employing copyrighted material as object of social, political or cultural critique.” Whether the documentary comments directly on the copyrighted material or parodies it, fair use generally applies, the statement says, as long as the producer isn't just taking the opportunity to use much of the material for free.

• “Quoting copyrighted works of popular culture to illustrate an argument or point.” The producer uses the material for a new purpose, with proper attribution, and doesn't take a free ride on the merits of the original, or use more of it than necessary, or use it simply to avoid the expense of coming up with something else.

• “Capturing copyrighted media content in the process of filming something else.” The producer unintentionally catches incidental sounds or images, such as pop music playing on the radio in the background or a family singing the copyrighted “Happy Birthday” song. Fair use can't be a cheap way to cop a soundtrack.

• “Using copyrighted material in a historical sequence.” The producer must show that a certain image, music, or speech is crucial to tell a story from history, that there's no suitable substitute, and that getting permission to use the work is impossible or excessively expensive compared to the doc's budget. However, the producer can't be simply building a doc around the material to exploit it, using more than necessary to make a point, using it without attribution or relying disproportionately on this single source.

[Examples of each of the four situations are posted online by the Center for Social Media.]

Producers could cite fair use in many less common situations and sometimes use more than one of these rationales at once, Jaszi said.

Because fair use is a stranger to some producers, the statement takes pains to argue against common misconceptions. According to the statement, for example, fair use rights do not belong exclusively to makers of high-minded, unpopular, or boring documentaries. Indeed, it can be entertaining or even commercially successful.

The statement also says a documentary producer can claim fair use even after trying and failing to negotiate rights. Perhaps it was worthwhile for the producer to try for copyright clearance at an affordable price even if it would be legal to assert fair use.

What's the usual?

Documentary filmmakers work under tighter copyright constraints than academic writers, reporters, and artists in many fields, according to Aufderheide and Jaszi.

Historians quote each others' work. Artists reinterpret images created by others. Hard-news journalists routinely use images, footage and music without copyright deals. But filmmakers have been stymied by costs and hassles.

Journalists get away with it simply because they routinely used material without asking, Jaszi says, and their hasty ways became standard for the field. Film historians once feared the wrath of Hollywood if their articles were illustrated by still images from movies, Jaszi says, but the Society for Cinema and Media Studies harnessed fair use and successfully changed copyright practices on that narrow issue (report in Cinema Journal, 1993). Last week's fair use statement takes a similar approach with a broader objective.

Too often producers don't employ fair use, omitting material from their programs or paying excessive fees because they or their bosses, program buyers or other gatekeepers are intimidated by copyright holders' overreaching claims, according to Aufderheide and Jaszi.

Especially important are the views of insurance companies that sell the errors and omissions (“E&O”) policies that producers need. Getting the E&O insurance carriers to acknowledge a definition of fair use will be crucial, says J. Stephen Sheppard, an advisor to the fair use project and a copyright attorney who represents producers and media companies. Insurance companies understand risk because they're in the business of assessing it, he adds.

Fees are rising and fair use is employed less often than twenty years ago, Jaszi says. John Sorenson, a Washington producer, said at the press conference last fall that copyright restrictions teach filmmakers to see the world through the rights window. He found it “deadening” to avoid topics unless he knew he could acquire rights without a struggle.

For Aufderheide and Jaszi's project, the next task is to spread word about the statement, persuading nervous producers and their lawyers, public TV and other gatekeepers, and insurers that fair use is safe when used selectively. The project found that some production chiefs still insist that producers clear rights for everything in a film.
The Rockefeller Foundation and the MacArthur Foundation, which funded the project, will provide additional aid for outreach to these producers and gatekeepers, as well as experimentation with legal clinics at law schools, which can give free advice to filmmakers before and during production, when they need to make rights decisions.

Let's not get greedy

Jay Fialkov, deputy general counsel at WGBH in Boston, deals with producers' questions about fair use every week and routinely tutors them on the concept before they start acquiring materials.

In making the American Experience profile of Dr. Martin Luther King Jr., “Citizen King,” WGBH's producers relied on fair use for some of King's materials but recognized the rights of his estate in others, according to Fialkov. There has been no conflict since broadcast, he adds.

When Fialkov trains producers about fair use, he advises them that fair use covers only as much of a copyrighted work as required for their purpose. “Producers might sometimes prefer to keep more of it for entertainment value,” he says. “In our view, fair use might not extend so far.”

Donaldson likewise advises self-restraint, telling clients employing fair use to include only as much copyrighted material in their programs as necessary “and not one second more.” The only producer who has lost a lawsuit over fair use in recent years, Donaldson says, was one with chutzpah who compiled long clips of Elvis Presley performances into a documentary and claimed he did not have to pay for rights.

“That was a good case to lose,” says Jaszi.

A long-term view

Wider reliance on fair use won't solve every copyright problem that producers face.

Getting permissions from copyright owners is hard enough. Keeping them is harder, because many are unwilling to negotiate prices for long-term rights, fearing that the price of rights will rise.

For years, high copyright costs have prevented broadcast or video sales of both of Henry Hampton's famed series on civil rights history, Eyes on the Prize (1954-1965) and Eyes on the Prize II (1965-1985). Rights had expired for archival footage and other materials. Admirers of the series are working to bring them back into distribution, according to Orlando Bagwell, a producer who worked on the series and now a grantmaker at the Ford Foundation. (On January 14, 2006 PBS announced that the series will come back to TV in fall 2006.)

A major rights problem for WGBH, says Fialkov, is securing rights for new media that are only beginning to develop. Decades ago, it was enough for public TV to buy broadcast rights, he says. Now he has to wonder whether to nail down cell phone rights, too. When possible, WGBH tries to buy rights for all media in perpetuity, he says, but rights owners fear they'll underestimate what their material will be worth in emerging media.

Fialkov is interested in the new Digital Media Project starting at the Berkman Center for Internet & Society at Harvard Law School, which will look at ways copyright law restricts classroom education as well as the informal education that public TV provides. William McGeveran, a fellow at Berkman, says the study will explore what policies could serve the interests of both copyright owners and the educators who use their materials.

In recent months McGeveran has followed the progress of the fair use project at American University and has said: “Peter and Pat have done such a good job starting off by building this statement of best practices — not as a wish list but as a reflection of talking to many people out in the field.”

Steve Behrens is a founder and now editor of Current, the newspaper about public TV and radio in the United States. He served as senior editor of Channels, a magazine about television and new media founded by Les Brown and the Markle Foundation and also has written for and edited suburban weeklies. Current is an editorially independent, paid-circulation biweekly newspaper that has been administered for most of its twenty-five years by WNET, New York. Current Publishing Committee, Takoma Park, Maryland, (301) 270-7240, web@current.org. This article is published with permission.

Center for Social Media , “Documentary Filmmakers' Statement of Best Practices in Fair Use,” 12-page PDF, November 18, 2005, American University, 4400 Massachusetts Avenue, NW, Washington, DC 20016-8080, 202-885-3107.

Center for Social Media, “Fair Use and Free Speech: Examples of Successful Fair Use in Documentary Film.”

Patricia Aufderheide and Peter Jaszi, “Untold Stories: Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers,” printable 35-page PDF. Available at the Center for Social Media Web site.

PBS News, “Eyes on Prize, produced by Blackside, returns to PBS on American Experience,” press release, PBS The Ford Foundation and the Gilder Foundation covered the costs of broadcast rights.