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IDA Helps Put Some Fair in Fair Use

By Michael Donaldson

Michael C. Donaldson

The IDA has negotiated a huge breakthrough for one of the most daunting economic hurdles for documentary filmmakers. Media/Professional Insurance is teaming with top intellectual property lawyers to enable filmmakers to insure against claims arising out of fair use of copyrighted material. The initiative was announced by IDA President diane estelle Vicari at IDA's 25th Annual Celebration of Academy Award Documentary Nominees, in Beverly Hills. The audience reacted with a spontaneous, standing ovation.

Media/Professional Insurance, a leader in media and entertainment liability coverage, has developed a policy endorsement that explicitly allows documentarians to rely on fair use without jeopardizing coverage. Insurers and film distributors typically require producers to obtain specific permission for use of copyrighted material in a film that can be prohibitively expensive and a serious hindrance to freedom of expression. The Fair Use Doctrine provides that limited use for the purposes of criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright. 

"Media/Professional Insurance pricing is always a function of our evaluation of the risk," says Leib Dodell, the president of the Kansas City, Missouri-based company. "We are projecting a cost of the rider above the normal premium of $200 to $2,000."

The filmmaker will need an opinion from an approved clearance counsel in order to qualify. The attorney list, as we go to press, is comprised of the following: Michael C. Donaldson and Lincoln Bandlow of Los Angeles; Anthony Falzone of the Fair Use Project at Stanford Law School; F. Robert Stein and Stephen Sheppard of New York; and Dan Satorius of Minneapolis.

"This initiative makes the fair use doctrine a valuable asset in the real world of independent filmmakers," Vicari notes. "Fair use has been accepted legally for more than a century, because free expression is one of our most important values. Creativity, critical analysis and cultural critiques are fostered, and sometimes only possible, when filmmakers can use otherwise copyrighted material."

Many, many documentaries have used copyrighted material as a crucial cinematic tool. The following three films are typical examples:

§  This Film Is Not Yet Rated, a critique of the MPAA movie rating system.

§  Smoke and Mirrors: A History of Denial, a look at the tobacco industry and health risks.

§  Who Killed the Electric Car?, which examined industry opposition to electric cars.

In each of these documentaries, filmmakers created a historical narrative that criticized powerful interests, which were unlikely to give permission for the use of copyrighted excerpts. Without the clips, these documentaries would have been less effective, or would not have been made.

IDA General Counsel Michael Morales explains that the Fair Use Doctrine was developed in case law and later written into the Copyright Act. US courts have assessed whether the reproduction of excerpts is "fair" based on four broadly defined factors: (1) the purpose and character of the use; (2) the nature of the copyrighted original; (3) the quality and quantity of the copyrighted work used; and (4) the effect of the use on the market for the original work.

Documentary filmmakers need an experienced, concerned insurance broker to work with them in securing proper coverage. Always find out if your broker is substantially involved with the documentary community. Not all brokers are the same when it comes to issues such as fair use.

Chubb Insurance Underwriters, which has had a long association with the IDA through Los Angeles-based broker Winnie Wong, has let the IDA know that it is seriously considering issuing a similar fair use rider for its E&O insurance policies issued to documentary filmmakers. Chubb expects to have a formal announcement in time for the next edition of Documentary, and it expects that its panel of attorneys across the nation, from whom it will accept opinion letters on fair use, will number over 50.

AIG, the New York City-based insurance company, has provided IDA with a fair use endorsement for its policies, which achieves the same result as the Media Professional Insurance rider. All developments will again be more fully analyzed in the next issue of Documentary

IDA Executive Director Sandra Ruch hails this significant shift in insurance practices as a "benefit to documentary filmmakers everywhere. Referencing past efforts such as the Documentary Credits Coalition, Ruch says, "Once again, IDA does for the documentary film community what individual filmmakers are unable to achieve for themselves."


Michael C. Donaldson served as IDA's president from 2001 to 2004. He is the author of Clearance and Copyright and Fearless Negotiating, in stores this month from McGraw-Hill.