A Fair Shake for Fair Use
By Tom White
Documentary filmmakers have all too often found their creative work hobbled by unnecessarily harsh copyright clearance practices. Now, filmmakers have taken the initiative to change their environment.
The International Documentary Association took a leadership role in co-authoring a Documentary Filmmakers' Statement of Best Practices in Fair Use. Fair use is the legal, unlicensed use of copyrighted materials. The document, available at centerforsocialmedia.org/fairuse.htm and www.documentary.org, describes common situations in which fair use is applicable. Former IDA board president and general counsel Michael C. Donaldson also served on the legal advisory board, composed of six nationally known lawyers and law professors.
"This is a giant leap for documentary filmmakers," says Donaldson. "This statement clarifies what filmmakers regard as fair and reasonable, and it should remind many who might have forgotten about fair use of its usability."
Five leading media arts organizations collaborated to create the document, in a project launched by American University. Along with the IDA, they are the Association of Independent Film and Videomakers (AIFV), the Independent Feature Project (IFP), the National Alliance for Media Arts and Culture (NAMAC) and Women in Film and Video (DC Chapter).
The project was coordinated through American University's Center for Social Media in the School of Communication, and the Program on Intellectual Property and the Public Interest in American University's Washington College of Law. Pat Aufderheide, a leading critic and analyst of social documentary, and Peter Jaszi, a renowned intellectual property law professor, led the project. The Rockefeller Foundation and the John D. and Catherine T. MacArthur Foundation have funded the effort over the past three years.
Fair use is interpreted by discipline and profession. In recent years, filmmakers have found that broadcasters, cablecasters, lawyers and insurers tell them that fair use is too hard to define. Therefore, working professionals deliberated together in meetings over the last year and across the nation, through their organizations, to devise this Statement. Because documentary filmmakers are both copyright holders and copyright users, they crafted terms that they believed they could accept, if another person were to apply fair use to one of their own works. Thus, the Statement reflects both their concerns as owners and as users.
The Statement features four general categories in which fair use often applies, with certain limitations and conditions:
Quoting copyrighted works of popular culture to illustrate an argument or point
Capturing copyrighted media content in the process of filming something else
Using copyrighted material in a historical sequence.
These categories are merely the most common situations that documentarians today encounter when considering fair use; in practice other situations and combinations of them arise. However, Jaszi notes that the general principles and limitations identified in these areas should guide filmmakers in deciding whether fair use is appropriate in other cases.
On November 18 at American University, filmmakers such as Gordon Quinn (Hoop Dreams; The New Americans), Katy Chevigny (Deadline) and Gerardine Wurzburg (Educating Peter) were joined by representatives of the five signatory organizations to launch the statement. As well, representatives of the Independent Television Service (ITVS) and the public TV strand P.O.V., media arts organizations such as the Bay Area Video Coalition and Arts Engine, and the University Film and Video Association (UFVA, which represents more than 100 film schools) endorsed the statement.
"It's important to create visibility for the Statement," says Sandra Ruch, IDA's executive director. "It brings transparency and reliability to the marketplace."
Other organizations are also highlighting the Statement and the concept of fair use. The UFVA announced a competition involving $1,000 cash prizes for the best short film employing the Statement's principles on fair use. Chevigny, on behalf of Arts Engine's Media That Matters Film Festival, announced a $1,000 prize for the best use of the Statement's principles. The Center for Social Media and the Washington College of Law announced continuing grants for outreach and support from the Rockefeller Foundation and the John D. and Catherine T. MacArthur Foundation.
In addition to the full text of the Statement, the Center for Social Media's website (centerforsocialmedia.org/fairuse.htm) features examples of successful applications of fair use, along with background information, a primer on public domain access and a guide to situations where filmmakers never need to worry about clearing material.
Thomas White is editor of Documentary.