QUESTION OF THE MONTH: Free Legal Advice for Fair Use

Posted by Patricia Aufderheide on July 01, 2009

QUESTION:

Dear Center for Social Media,

We are looking for an expert in Fair Use that can watch our documentary and let us know if we can use some of the news archival and other historical footage that we have included. As you well know, financial resources are always tight when making a film; therefore,
I will truly appreciate if you know of anyone that can donate these services to us.

All the best,

Daniel

ANSWER:

Dear Daniel,

We were co-facilitators of the various Codes of Best Practices in Fair Use that are on our website, and we strongly encourage you to use these as a guide to your decision making. It will be more reliable than the advice of many lawyers, many of whom have not yet encountered the Code. Your own judgment, if you are sure that it is sound (you may want to try out your reasoning on people who aren't related to you or committed to the production!), when informed by one of the Center's codes such as the Documentary Filmmakers' Statement of Best Practices in Fair Use or the Code of Best Practices in Fair Use for Online Video, should be enough to reassure you that you are in a comfortable zone for Fair Use.

If you want or need errors and omissions insurance, eventually you will need a lawyer's letter saying that your uses accord with the principles and limitations of the Codes or the Doc Filmmakers' Statement. You should make sure to take the relevant code of best practices from our website with you to your lawyer, and explain why you believe each of your uses conforms to the relevant code. You should also inform your lawyer that you prefer to use your Fair Use rights (if you do) rather than take the absolute security of licensing the relevant footage. Otherwise your lawyer will, understandably, probably try to give you the maximum legal protection, which would be licensing. Fair Use, like all rights, entails the possibility that someone might challenge it. That is why people try to find the comfort zone that accords with their acceptable level of risk. The Codes of Best Practices in Fair Use created through the Center provide zones in which people can be confident that their legal risk is minimal. Because they are exercising their rights rather than writing a contract, the risk will never go to zero.

If you want to obtain free services, you may want to turn to the Volunteer Lawyers for the Arts, which offers pro bono services. However, these lawyers, who tend to be unseasoned, are very likely to be unfamiliar with the Codes and their success. So you must be sure to be armed with information about the Codes and their efficacy.

Good luck!

Center for Social Media

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