By Pat Aufderheide, Peter Jaszi, Maura Ugarte and Michael Miller
If I want to use something under fair use, do I have to ask permission, give credit, or use a disclaimer?
You do not have to ask permission or alert the copyright holder when employing fair use. If you are confident that your fair use claims will hold, bolstered by the Documentary Filmmaker's Statement, then simply use that material. However, if you do want to ask permission and then find that you’re rejected, not answered, or presented with unworkable terms, you can still go ahead and employ fair use. in some cases, courts have found that asking permission and then being rejected has actually created a case for fair use. So asking permission doesn't mean that you necessarily give up the right to use fair use if you are denied.
It’s almost always important to creators that you give credit somewhere—whether it’s in the credits, or on-screen identification, or on the website. It’s not part of the law, but it is good etiquette.
What is the appropriate length of a clip to fair use? I heard that if you use ten percent of the original length then it's okay.
According to the law, there is no exact percentage that you are allowed to fair use. The Statement suggests that you can use the material long enough to make your point but no further.
Here are some examples of successful fair use in documentary film.
Does it matter if you are a non-profit organization vs. a commercial organization?
It makes no difference in the law whether or not you are using other people's copyrighted material on behalf of a nonprofit. Fair use is just as viable within a commercial context as in a nonprofit context. Your organization must either rely on fair use or license the material, unless it is in the public domain.
Isn’t there some material that isn’t copyrighted out there? What is the public domain? What about Creative Commons?
Most material you’re interested in is copyrighted and probably still under copyright. Since 1978, copyright is default (you don’t need to register or put a little © on it), and copyright usually lasts at least 70 years after the death of the creator.
But there are pockets of uncopyrighted or copyright-light material. In copyright law, public domain material has no copyright. Either it never did (in this now-rare category is material wholly prepared by a federal government employee at work) or it has fallen out of copyright. In practice, unless you’re making a movie about, say, Renaissance art, you won’t find much public domain material.
Creative Commons licensing allows creators to permit anyone who wants to use their work to use it under certain conditions, without checking back with the copyright holder. Different licenses impose different conditions; all licenses prohibit digital rights management (DRM). Many filmmakers find the DRM restriction makes it unuseable for their purposes, since most distribution carries some form of DRM. There’s a growing body of Creative Commons-licensed material, but often the material a filmmaker most wants is not in that pool.
And if you’re filming a building from a public area, don’t worry about copyright. There’s a special exemption for that.
What about trademark? Can I film logos? What if someone’s wearing a T-shirt with Pepsi on it?
You generally don’t need to worry about infringing trademark rights by capturing them or using them as illustrations in your film. By doing so, you’re not confusing the public or suggesting any endorsement by the owner of the trademark.
Isn't fair use just stealing?
Clearly fair use isn't stealing; people who treat all unlicensed use as stealing have forgotten that copyright ownership is a limited right, as part of the basket of incentives to create more culture. The limits are as important as the ownership rights.It's not surprising though that people get confused. Not only do we live in a world where many things are more completely owned, but also large media corporations have continuously told people that any unlicensed use is "stealing" ever since file sharing became popular.
Nobody wants to open the door to piracy, and the Statement of Best Practices certainly doesn't. The Statement specifies under what limited circumstances users' rights take precedence over owners' rights, within today's law. It affects documentary filmmakers equally as users and as owners. That is one of the reasons why a statement of what is considered fair by documentary filmmakers has such credibility. The filmmakers’ explanations of the best way to professionally employ fair use has clear limits, and those are helpful to all, including those who may wonder if someone has infringed upon their copyright.
Has the Statement ever been used in court?
So far, there doesn’t seem to have been a need. Fair use litigation is actually extremely rare, and there have been very few disputes over documentary films since the Statement came out. If it were to be used in court, however, past judicial practice suggests that it would provide valuable insight for the judge into responsible professional practice.
I want to use footage, but don't have access to it. Can fair use help me out?
You need to have access to material to use it under fair. If the owner is the sole-source of the material, that owner controls the terms of access. If you got material from a footage house or archive under a contract that requires you to pay if you use it, you can’t later employ fair use. You already made a promise not to employ it, in that contract. Read your contracts before signing!
Read this related question about footage access on our fair use blog.
Does fair use apply to still photos, book covers, newspapers, and other non-film items? What about things I find on the web? What about music?
The Statement and fair use itself apply to all copyrighted works in any form, not just film, no matter where you find them. The Web is just as full of copyrighted material as anywhere else.
Take a look at the these clips from Refrigerator Mothers by Kartemquin Films--several of which fair use magazines, books and newspapers.
For a more in depth discussion of what works are copyrighted, read Michael Donaldon's concise "Copyright Backgrounder."
Does the Filmmakers' Statement of Best Practices apply to fiction film?
The Statement is tailored to the environment of documentary filmmaking, and can be applied in similar documentary-based genres. In recent years, however, the growing employment of fair use in documentary has led to a trend in employing fair use in fiction, particularly when documentary material is inserted into it. Since fiction filmmakers have not yet developed a Statement of their own, the field lacks the comfort of knowing what best professional practice is, but the evidence is in that fair use can be employed in fiction filmmaking—with the same logic of having a new purpose and using an appropriate amount to that new purpose.
How does fair use work internationally? This is U.S. law. And what if I use material from other countries?
Your work is done under the copyright law of your nation, and even if the material you want to quote came from another country, if you’re making the film in the U.S., then U.S. law applies. Some other countries also have fair use, and some Commonwealth countries have fair dealing terms that bear some similarities, especially Canada. In distribution, filmmakers have found that if they satisfy U.S. law, international distributors are usually happy. One reason why distributors accept U.S. law for international distribution may be that other countries do not have the punishing statutory damages, or penalties, that the U.S. has..
How does fair use apply to release forms and all that stuff?
Privacy issues concerning permission to film individuals and release forms are a separate part of the law and do not deal with copyright or fair use. Also, Michael Donaldson, an entertainment lawyer who was on the advisory board for the Statement, has written a reliable guide, Clearance and Copyright. The book clearly stipulates what responsibilities filmmakers have when dealing with privacy issues.