Filmmaking 2.0

Fair Use for Documentaries

December 2009

By Jon M. Garon*

This is part of a series of book excerpts from The Independent Filmmaker's Law and Business Guide: Financing, Shooting, and Distributing Independent and Digital Films designed to introduce filmmakers and others interested in creating content on the legal issues involved in the filmmaking process.

For documentary filmmakers to accurately depict their stories, they invariably need to rely on copyright’s fair use provisions significantly more than other filmmakers. This is particularly true if the documentary focuses on literary or visual works or incorporates copyrighted materials as background content, although the situations in which the documentary filmmaker may rely on fair use are not limited to these two categories.

Fair Use Basics

Fair use represents a limitation on the exclusive rights held by copyright holders. Under certain conditions, it allows third parties to use copyrighted content without the copyright holder’s permission. Broadly speaking, fair use is available for “for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research.” In addition to these broad categories, fair use has also developed to protect the rights of researchers, such as documentary filmmakers, to make personal copies of entire works for their research archives, to enable owners of copyrighted works to make backup copies of materials, and to allow consumers to temporarily copy music, television, and film for personal enjoyment at a later time or in a different place.

Fair use is a very fact-specific balance between the rights of the copyright owner and the rights of the person seeking to make copies or to use content without permission. Because it is fact specific, the exact limitations of fair use are often subject to conjecture. Moreover, because of the significant cost of lawsuits, there is a tendency to be unnecessarily cautious regarding the interpretation of the law. Since filmmakers, producers, and distributors must manage not only the legal rights involved but also the costs associated with defending those rights, documentary filmmakers often feel pressured not to use content in ways in which lawyers would reasonably expect to be considered fair use. Nevertheless, fair use is not blanket permission to take copyrighted works that are readily available for licenses. A low production budget is not a basis for fair use.

The statutory provision of fair use emphasizes four factors to help courts determine whether the party copying material has acted legally.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include the:

  • purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  • nature of the copyrighted work;
  • amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • effect of the use upon the potential market for or value of the copyrighted work.

The four fair use factors are balanced in the context of the fair use provision’s goal of providing public broad access to public discourse and a statutory tool to ease the tension between the Copyright Clause of the Constitution and the First Amendment. No single factor is determinative.

Broadly speaking, the law favors documentary film’s goals of public comment, so the first prong of the four-factor test will generally weigh in the favor of the filmmaker. This does not mean that the documentary must be ponderous or academic to benefit from the clause. Irreverent or polemic, comical or studious, all works improve public knowledge and thereby benefit the public. However, the first prong also specifies that to be considered fair use, a work’s appropriation of copyrighted material must be transformative in nature. A transformative use is one that changes the character of the copyrighted material. Quoting dialogue or showing a short clip as part of a critique of the material is transformative. Merely reproducing the content without comment does not transform it. Thus, if the documentary provides insight or criticism through the context in which the copyrighted material is used, it is much more likely to be considered fair use.

The second prong of the test reflects the fact that stronger copyright protection is given to fictional or highly creative works than to those that are factual. While ideas, facts, formulas, and processes are not even protected by copyright, the manner in which they are expressed is given modest copyright protection. Fair use offers very wide latitude to make use of such factual expressions, because copyright should never create a monopoly over facts or ideas.

For most documentary filmmakers, the most important aspects of the fair use test are the last two prongs. Under the third prong, the law makes clear that less is more. The smaller the portion of a copyrighted work one uses, the greater the chance it is considered fair use. Short quotes are more likely to be fair use than recitation of extensive passages; 30-second clips are more likely to be fair use than 5-minute sequences.

Similarly, the fourth prong balances the economic interests of the copyright holder with those of the documentary filmmaker or others who seek to use copyrighted works without permission. To the extent that the documentary film serves as a competing product with the copyright holder’s own work, it is less likely to be considered fair use. If the documentary filmmaker’s work does not threaten to replace the copyright owner’s work in the market, the documentary will more likely be considered fair use.

Documentaries about Media and Culture

The greatest challenge in the application of fair use provisions relates to documentaries that focus on media and culture. To effectively communicate, these documentaries often make extensive use of materials copy-righted by third parties. To the extent that the documentary filmmaker uses the source to illustrate his own editorial content, such clips generally do not require the copyright holder’s permission. However, the documentary must not become a direct competitor for the copyright holder’s work. For example, if a Three Stooges short is shown in its entirety, followed by footage of interviews with comics who learned their craft by watching the Three Stooges, the use of the short would not be fair use. In this example, the documentary filmmaker’s original content would have only a loose relationship to the copyrighted work, and the use of the entire short would turn the documentary into a commercial competitor of the original. If instead the filmmaker interspersed his original interviews with brief clips of the Three Stooges directly tied to the content of the new material, and each clip was no longer than was reasonably necessary to illustrate the original content, that would more likely be considered fair use.

Though not a legal standard, a practical standard that applies to other forms of research can also be applied to documentary filmmaking. Students are taught that using a single source is plagiarism but using five sources is research; the same practical rule may apply to the use of film clips. A documentary that takes all its clips from a single source is much more likely to feel the wrath of the copyright holder than a documentary that draws content from a number of sources. If the documentary’s emphasis is the impact of television comedy on pop culture, focus on a range of modern television comics rather than only on Jerry Seinfeld. If the real subject is Jerry Seinfeld, use a broader range of material than just his network television series.

Background and Incidental Content

Since a documentary filmmaker implicitly represents that his film is accurate and truthful, he should not alter the content of footage. He must avoid falsifying the trademarked goods, copyrighted materials, and other content captured while filming scenes as they unfold. This creates a significant challenge. Billboards, sculptures, posters, television broadcasts, ring tones, T-shirts, and other copyrighted works are ubiquitous. To strip these elements from a documentary would essentially falsify the film’s content.

At the same time, the filmmaker should take reasonable steps to limit these elements when practical and appropriate. If, for example, he is arranging sit-down interviews, then the space behind the interviewees in the frame should not include copyrighted works. If the interviews are taking place in the field and the camera operator has the opportunity to stand facing any direction, then she should move to the extent practical to avoid capturing a copyrighted work in the background just as she moves to control sunlight and shadow. In addition, the filmmaker should not try to use fair use as an excuse to incorporate material for which he did not get a license—say, by turning on a television in the background or otherwise staging the appearance of copyrighted material.

Documentary Filmmakers’ Statement of Best Practices in Fair Use

In 2005, a coalition of lawyers, law schools, and film industry advocates came together to help outline many of these principles. The effort served both to clarify the practices commonly used by professional documentary filmmakers and to help advocate that those practices meet the legal guidelines for fair use. The result of that project is the Documentary Filmmakers’ Statement of Best Practices in Fair Use. The report is available from the American University Center for Social Media, which also has other projects related to online video and teaching.

The Statement of Best Practices in Fair Use outlines appropriate and inappropriate applications of fair use by documentary filmmakers. Like the advice offered throughout this book, the report’s recommendations can only lay out the various choices filmmakers can make. Ultimately, fair use remains rather fact specific, and filmmakers must decide for themselves when to seek permission and when to risk legal conflict.

Perhaps the most significant impact of the Statement of Best Practices in Fair Use has been its acceptance within the insurance industry. Coauthors of the statement have written about its impact: “The theory behind the Statement is that courts respect the views of responsible professionals about what kinds of uses are fair in their area of practice.” As a result of the industry acceptance, insurance companies are demonstrating stronger support for including fair use content in documentaries. “The four companies most used by U.S. documentary filmmakers — AIG, MediaPro, ChubbPro, and OneBeacon — all announced programs to cover fair use claims between January and May of 2007.” The result of the widespread support of the statement and adoption of its standards within the insurance industry is a normative change for acceptable practice that provides documentary filmmakers concrete guidance regarding the scope of risk associated with fair use claims.

* Jon Garon is admitted in New Hampshire, California and Minnesota.

Adapted from The Independent Filmmaker's Law and Business Guide: Financing, Shooting, and Distributing Independent and Digital Films, A Capella Books (2d Ed. 2009) (reprinted with permission). Jon Garon is professor of law, Hamline University School of Law; of counsel, Gallagher, Callahan & Gartrell.

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Jon Garon at
800-528-1181.

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