June 1, 2001

Fair Use, Reuse and Lawsuits

There is a family of myths that swirl around the clearing of film clips. This article is intended to dispel them. For instance, many filmmakers believe that there is some magic length of film that can be used without having to clear the clip. “Two minutes?,” they ask hopefully. Confidence builds. “It is two minutes, isn’t it?”. . . “I can use up to two minutes of a film clip without getting permission. It’s called ‘fair use.’”

The answer is a simple “NO!”

Fair Use is a concept that can be a big help to a documentary filmmaker. However, it does not allow you to take a portion of another person’s copyrighted film and edit it into your film without specific written permission. Even though documentaries can usually be argued to be in the public interest, you cannot usually incorporate uncleared footage from the films of others. One obvious reason to clear film clips in advance is that lawsuits are expensive. It is also expensive to remove a clip that you used in your film after it is released, if a court rules against you.

Fair Use is a court-developed doctrine that Congress incorporated into the copyright law in 1978. The Fair Use doctrine says that you do not have to clear a clip if your use of the clip is “fair.” In fact, Fair Use is of almost no use to a filmmaker who wants to use a clip from the film of another filmmaker. Fair Use is a significant factor in deciding when it is necessary to clear a photo, poster or sculpture which may appear in your film, but not a film clip.

The use of film clips is most commonly associated with documentaries, but many makers of fiction films use clips for dramatic effect to recreate a historical scene. Forrest Gump used a variety of film footage. Apollo 13 masterfully integrated both historical footage with the specially prepared live-action sequences to create an amazingly realistic film. Film clips are also commonly used in connection with blue screen projections in front of which actors can perform as though they were halfway around the world.

CLEARING CLIPS WITHOUT ACTORS OR MUSIC

Many filmmakers have saved a bundle on a chase scene or an explosion or a sunrise or crashing waves or a running deer by using stock footage. Stock footage is preexisting film that you can license for use in your film. It is usually obtained from a stock footage house, a business which owns the rights to license clips from hundreds or thousands of films. Most stock footage houses have their own written forms, which are quite adequate. Stock footage houses have remarkable choices available to you, often in different styles. A number of reputable stock footage houses advertise in this magazine.

Be sure you understand what you are getting. If anything goes wrong, the fact that you “thought”’ that you had cleared all the rights is of little help. Such good intentions can protect you from punitive damages in the event of litigation, but you still have to pay top dollar for your mistakes. Make sure that if you are relying on the stock footage houses for more than the visual images on the film stock, you obtain specific representation and warranties. For instance, when buying stock footage, there is usually no sound or effects on the film. A film clip does not usually grant any rights to music that may be on the film.

There are adequate clip releases in several books that cover all the points you need. Remember that these releases only cover the exact clip you describe, for the exact length you request, and only for use in the film you describe. Any different or more extensive use has to be cleared. You might want to wait to finalize your clip release until you are sure of the exact use you are going to make of the clip.

WRITERS AND DIRECTORS

Both the Writers Guild of America and the Directors Guild of America have specific agreements covering the “reuse” of material. Reuse under the union agreements refers to taking footage shot for one film and using it in another film. Clips from films produced under the Minimum Basic Agreement for either of these unions may require additional payments. The theory for these provisions is that if you were not using the clip, you would have to create your own footage and for that you would employ a writer and/or director. To the unions, it is a job issue. Even though the payment would be the obligation of the person who sold you the clip and not your specific obligations, you want to check, because if the unions do not get paid, they get very angry at everybody—including you. Even nonfiction films may have been made under the auspices of one of these unions, so be sure to check on this.

CLIPS WITH ACTORS

It is common, even in feature films, to have scenes in which a television set is on. If the screen is visible and playing a program, you have two choices: You can create your own video and play it on the television set, or you must clear an existing clip. Such a clip usually has actors in it.

This process can be confusing to a filmmaker who licenses a clip from a television show or another feature. The owner of the copyright of the film or television program can grant you the right to use the actual film, but usually cannot grant you permission to use an actor on a film clip.

If the person appearing on the screen is a member of either of the actor’s unions (SAG or AFTRA) there are specific provisions in the Basic Agreement for each of the unions that cover reuse. The term reuse simply means that a piece of film or tape that was originally shot for one purpose is being used for another purpose. The actor is due a payment, which must be negotiated separately from the agreement under which the actor originally rendered services and must be at least equal to one-day minimum wages under the union contract. The theory is that if you do not use the preexisting footage, you will hire an actor to create the footage you need.

The situation is different when the film you are making is not a signatory to any of the unions or the footage being used was news or candid footage. The argument that the use of this footage throws another actor out of work no longer applies. Your use of the film might well be lending reality to the film you are making, as opposed to ripping someone off.

For example, that was the basic result when legendary singer James Brown sued Twentieth Century Fox. The film, The Commitments, used 27 seconds of Brown’s performance on a 1965 television show without permission. Defendant’s summary judgment motion was granted, meaning Fox won without trial. The 27 seconds was comprised of seven different cuts from The TAMI Show, where James Brown is performing. Brown’s name is not mentioned at all during this brief scene. Later, Brown’s name is simply mentioned in a laudatory fashion. In this case, Fox secured the right to use the lyrics and the musical composition from the music publishing company holding the copyright in those works.

Do not rely on the logic of the above case without checking with an experienced lawyer. Even if you are right, you do not want to be sued. Remember the golden rule of filmmaking: When in Doubt, Clear. A Name and Likeness clearance letter covers most situations.

CLIPS WITH MUSIC

By this time, it should be no surprise to you that you have to clear the music playing on the film. It is your responsibility. You either have to replace it with original music or go through the music clearance procedure. This is true even for the theme music in television programs. In that case, the music may well be owned by the studio owning the program itself, but established composers can often reserve rights in their employment contracts. One of the commonly preserved rights is the right to authorize producers other than the studio to use the music in connection with new motion pictures. These rights are held by the publishers. So clear the music.

On a related topic, beware the Music Video. For some reason, independent filmmakers are sometimes lulled into a belief that receiving a music video from a performer or a public relations company who wants you to use the video in your film serves to clear the music for your film. It is NOT the same. If you decide to use the video you receive, you must go through all the music clearance steps, even if the video comes to you from the record company. You must have written clearance for all the music in your film.

Clearing film clips is an ongoing part of the life of a documentary filmmaker. There are many pitfalls. The key is to keep good notes on the source of every clip you use and the efforts you made to obtain all the clearances described above and be absolutely sure to clear music— even ambient music. No exceptions.

 

The above article is a modified version of a chapter from Michael Donaldson’s book, Clearance and Copyright. He also co-wrote Negotiating for Dummies and is the current President of IDA.

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