June 30, 2005

Fair Use: The Documentarian's Best Friend

By Pat Aufderheide and Peter Jaszi

A study conducted with some 50 documentary filmmakers over the course of a year, the American University's  "Untold Stories"  revealed that documentary filmmakers pay too much, spend too much time, suffer too much frustration and censor their own aspirations because of copyright clearance problems. It also showed that some of that money, time and suffering is unnecessary. There is real confusion among filmmakers about the reach of intellectual property and the scope of exceptions to its application in doc filmmaking. So often they are too cautious.

How are filmmakers hurting themselves?

Filmmakers could make more efficient use of copyright law. They sometimes clear rights for source material that is actually available to them without intellectual property clearance. Sometimes it is in the public domain, and sometimes its use could not conceivably trigger legitimate objections from rights holders. Filmmakers need to get more reliable information about their existing rights as users of source material.

The study also shows that many filmmakers are unnecessarily cautious in making "fair use" of pre-existing copyrighted materials. This is either because they lack a full understanding of this important limitation on copyright protection, or because they believe--often on the basis of experience, sometimes on the basis of others' experience or hearsay--that their invocation of it would not satisfy the various "gatekeepers" (funders, broadcasters, distributors, insurers and others) who control filmmakers' access to audiences.

How can filmmakers help themselves?

They can share with each other their understanding--and the understanding of reliable lawyers--of the best practices in fair use today. A comprehensive and balanced Statement of Best Practices concerning documentary filmmaking and intellectual property law will expand the range of filmmakers' options and lower costs. It will do this because it will help to clarify the limits on copyright and trademark law; encourage filmmakers to rely upon fair use where appropriate; persuade gatekeepers to accept well-founded assertions of fair use; discourage copyright owners from threatening or bringing lawsuits relating to documentary projects; and, in the unlikely event that such suits are brought, provide the defendant with a basis on which to show that his or her uses were both reasonable and undertaken in good faith.

How are filmmakers supposed to develop a statement like this on their own?

They have help. The Center for Social Media and the Project on Intellectual Property and the Public Interest at American University, with support from The Rockefeller Foundation and the John D. and Catherine T. MacArthur Foundation, are working with filmmakers' and artists' organizations. The International Documentary Association (IDA), the Association of Independent Film and Videomakers (AIVF), the Independent Feature Project (IFP), the National Association of Media Arts Centers (NAMAC) and others are hosting conversations that will shape such a statement.

Why don't we just get some lawyers together to lay out exactly when we can and can't use fair use (and other balancing features of copyright)?

The good (and bad) news is that it doesn't work this way. As anyone with experience with lawyers knows, they are cautious about giving categorical advice, and fond of reminding clients that "It depends..." That is never truer than in interpreting fair use. Fair use is triggered if the value of the use to the public trumps the owner's private interest. This right depends on how, when, how much and for what purpose you are using the quoted material. The "situational" nature of fair use can be frustrating. In the end though, this flexibility is what makes the doctrine useful in this fast-changing field; it also respects the realities of art, where it's impossible to predict how future artists will interpret source material.

A Statement of Best Practices isn't a set of rules. Instead, it is a statement about professional consensus about common practices in fair use today. The result will be more powerful than anything lawyers could come up with on their own because "reasonableness" and "good faith" count for so much in this kind of analysis.

We can develop any kind of statement we want, but who will listen to us?

Gatekeepers (including broadcasters and DVD distributors), like filmmakers, are the victims of the uncertainty and confusion that surrounds fair use. They don't benefit from high costs, either. The best way to help them be more willing to take risks is to provide an authoritative account of the professional consensus about what's good practice and what isn't, as vetted by legal experts. This approach has worked before, though not on such a large scale. Book publishers only used to accept frame enlargements for academic film books if the rights had been cleared. The Society for Cinema Studies formed a task force and in 1993 it issued a report, "Fair Usage Publication of Film Stills," in Cinema Journal, which identified this practice as a core fair use. It changed publishers' practices.

What would a Statement of Best Practices look like?

We don't know exactly; in fact, that's for filmmakers to decide. But we do know it will be divided into two parts--the first on fair use and the second on other exemptions from copyright clearance.

The first part will be the hardest because here filmmakers will need to draw distinctions between irresponsible and excessive uses of copyrighted materials and the appropriate and limited uses that may be considered "fair." In articulating this distinction, we'll focus separately on the different contexts in which filmmakers employ pre-existing moving and still images, texts, musical compositions and other works. These include:

  • commenting critically on media,
  • "sampling" popular culture to portray societal conditions,
  • incorporating background sounds and images in new documentary footage, and
  • employing archival material in historical or biographical projects.

With respect to each of these, factors that might bear on whether a use is "fair" could include, among others, the quantity of material used; the prominence the material will have in the finished film; the importance of the use to the filmmaker's project; and the terms (if any) on which a license might be available.

Do you really believe just listing these topics is going to convince a broadcaster to let me use this material?

No. The real work still lies ahead. Filmmakers need to clarify for each other, and eventually for their gatekeepers, what the best practices are with respect to each of these and other topics. Only a Statement of Best Practices can have the kind of persuasive power we hope this one will.

Who's going to take a filmmaker's word for this--and worse, what if we're wrong?

A legal advisory council will assist filmmakers in ensuring that they are not recommending to their peers' behavior that could get them in trouble or set a precedent that might negatively impact filmmakers themselves.

What about the material for which you don't need to invoke fair use, material filmmakers never need to clear?

That's the easier part of the Statement of Best Practices, because this knowledge is well established, even though filmmakers have often been outside the lawyers' circle of people who know it. Building from legal knowledge and from conversations with filmmakers, the statement will also itemize the many kinds of pre-existing materials that filmmakers can use without any risk of intellectual property complications. This list will include (but not be limited to):

  • Still photographs, motion picture footage, text and other works by federal government employees;
  • The design of buildings that are visible from public places;
  • Details of interior spaces (including the arrangement of furniture, domestic objects, etc.);
  • Trademarks and commercial symbols shown in ordinary commercial use.
  • The statement will also underline the permissibility of hyperlinks and other forms of reference to copyrighted materials residing on the Internet.

Wait a minute; I like my copyright, and I certainly don't want people just taking my stuff without asking for it.

Nobody wants to open the door to piracy, and this statement certainly doesn't. It will specify under what limited circumstances users' rights take precedence over owners' rights, within today's law.

This Statement of Best Practices in fair use will certainly affect documentary filmmakers equally as users and as owners. In fact, that's one of the reasons why a statement of what is considered fair by documentary filmmakers has such credibility. They benefit from the owners' rights in copyright and from the users' rights in the same law. A filmmaker who takes footage of a public event, for example, would be expected to allow access by others in situations prescribed in the statement.

For more information, or to become part of the conversation, contact socialmedia@american.edu or visit www.centerforsocialmedia.org.

 

Pat Aufderheide is co-director of the project on Intellectual Property and the Public Interest at American University. Aufderheide is a professor in the School of Communication at the university, and the director of the Center for Social Media there.

Peter Jaszi is co-director of the project on Intellectual Property and the Public Interest at American University. Jaszi is a law professor at the Washington College of Law and heads the Program on Intellectual Property and the Public Interest (PIPPI) there.

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