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News from the Future of Public Media
Fair Use Question of the Month: It’s Fair Use in my film, but what about on the film website?
email discuss Posted by Claire Darby on Jan 4, 2010 at 1:18 PM
QUESTION:
Dear Center for Social Media,
I’m working on a documentary about the history of American journalism—particularly the points in history when journalists were able to use their profession to uncover the truth, or “speak truth to power,” like Watergate. We’ve interviewed a number of journalists for the film, but we’re also making substantial use of newsreel footage and archival photographs. I’ve read the Documentary Filmmakers Statement of Best Practices in Fair Use, and it’s been really helpful. I feel like I have a good understanding of where I can claim fair use in the film, but I still have a question. We are also building a website where we’d like to use some of the archival photographs from these key moments—people can click on them and watch web shorts and learn more about the historic event. I’m pretty sure the way we want to use these photographs in the film will be “transformative,” and will fit within the fair use categories, but I’m less sure if there’s any way we can claim fair use for using these photographs on our website. Do you have any thoughts or guidance on this? Also, if it turns out that the way we want to use them for the website is NOT fair use, but how we’re using them in the film IS, how do we deal with licensing? Can we just pay for the one use (i.e., on the website), and then continue to use them—under fair use—freely for the film?
Thanks,
Margaret
ANSWER:
Thank you Margaret, for reading the Documentary Filmmakers’ Statement so closely! You need to ask yourself the same kinds of questions about your website material as you did about your transformative use of material for the film. The medium—film, book, website—doesn’t change the logic of fair use. You may be helped in practicing that logic as well by reading the Code of Best Practices in Fair Use for Media Literacy Education. Media literacy educators often face the challenge of how to contextualize adequately their use of copyrighted material on websites.
Center for Social Media
Discussion
I agree with CSM’s answer and brevity for lawyers is always a rare comodity. From Zenger to the Virgiinia Declaration to the First Amendment, our Founders knew what they were doing. Because the film’s subject is about investigative journalism, the classic struggle between the Commerce Clause and the First Amendment is once again depicted. Yet in this case, I would find it difficult to believe that a Court would not come down on the reporter’s side for both Constitutional protections. I, for one, look forward to watching the film
Posted by Steven Paul Mark on Jan 5, 2010 at 11:27 AM
Don’t know if this applies to your specific situation, but I asked the same question to my lawyer Lisa Callif at Donaldson & Callif. I had some footage that I could used as fair use in the doc I’m working on, but she said that in my case, it would not qualify as fair use for my website as long as there could be any possibility it could be construed as promotional use—which my and most websites for film projects could. Even if I’m just posting videos to be viewed for free—part of the use of the website is to help market the film when it’s finished. Hope that’s helpful.
Posted by Lisa Cathey on Jan 5, 2010 at 1:06 PM
Lisa Callif and Michael Donaldson are wonderful experts in fair use and great friends of the independent documentary filmmaker. Lisa is emphasizing the importance of context and the importance of others understanding your contextualizing. It is important for any filmmaker to understand the logic of fair use and apply it, and make clear to their lawyers their own understanding of transformative purpose; often the lawyers can help you strengthen your own way of recontextualizing. In any case, do read the relevant codes of best practices, to understand best how to interpret them for your own situation.
Posted by Pat Aufderheide on Jan 6, 2010 at 7:50 PM
Margaret, what is the name of your documentary and website? I’d love to learn more about your project.
Posted by Dan Hunt on Jan 8, 2010 at 10:56 AM
The project is called “In Search of Truth.” It is a collaboration between The Fund for Independence in Journalism, The Center for Public Integrity and the Investigative Reporting Workshop at American University. The project is about the moments in history when journalism spoke “truth to power.” The plan is to have the website go live some time in the spring with mini-documentaries on the site.