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Code of Best Practices in Fair Use for Online Video

This document is a code of best practices that helps creators, online providers, copyright holders, and others interested in the making of online video interpret the copyright doctrine of fair use. Fair use is the right to use copyrighted material without permission or payment under some circumstances.

This is a guide to current acceptable practices, drawing on the actual activities of creators, as discussed among other places in the study Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video and backed by the judgment of a national panel of experts. It also draws, by way of analogy, upon the professional judgment and experience of documentary filmmakers, whose own code of best practices has been recognized throughout the film and television businesses.

Recut, Reframe, Recycle

Online videos frequently quote copyrighted material without permission, in ways that could be entirely legal through fair use. But these works are threatened by anti-piracy measures that do not distinguish adequately between legal and illegal uses.

Fair Use Frequently Asked Questions

Since the release of The Statement of Best Practices we have received many inquires about fair use. Here are some of our more commonly asked items.

Unauthorized: The Copyright Conundrum in Participatory Video

Suppose you’re running an online video platform, and people start uploading video that uses other people’s work. How should unauthorized use of other people’s work be treated in this new environment?

The Good, The Bad and the Confusing: User-Generated Video Creators on Copyright

How do creators of content on the plethora of sites that accept online video understand their rights and responsibilities regarding intellectual property? Addressing this question is challenging, since the pool of creators is not only diffuse but constantly changing. In this study, undergraduate and graduate college students who upload online video were asked to describe their practices and attitudes on using copyrighted material to make new work and on the value to them of their own copyright. Includes links to press coverage of report.

Documentary Filmmakers’ Statement of Best Practices in Fair Use

Documentary filmmakers have created, through their professional associations, a clear, easy to understand statement of fair and reasonable approaches to fair use. Download this useful handbook, written by veteran filmmakers to help other filmmakers understand some instances where using copyrighted material without clearance is considered fair use. Click here for the full report & here for a list of authors and endorsers of the Statement.

Success of the Statement of Best Practices

The Statement has provoked dramatic change in the industry since it was released in November 2005. PBS and ITVS have used the Statement to release programs, and so have cablecasters including IFC. All four of the national errors and omissions insurers now issue fair use coverage routinely, as a result of the Statement.

Expanding User Rights For Documentary Filmmakers

Funded By: Rockefeller Foundation and Grantmakers In Film And Electronic Media

Fair Use Language for Course Syllabi[PDF]

In your syllabus, you often have some information on copyright. Here is some language to include in that section, specifically on fair use. This language has been reviewed by lawyers, including law professor Peter Jaszi of American University’s Washington College of Law and Michael Donaldson of Donaldson and Hart law firm, and it has been approved by the University Film and Video Association for use by its members.

Copyright Backgrounder[PDF]

By Michael Donaldson, Esq.
This concise background document describes what copyright is and what can be copyrighted, as well as what material is in the public domain and what is fair useable. Michael Donaldson is an attorney in Los Angeles, many of whose clients are leading documentary filmmakers. His book, Clearance and Copyright (Silman-James Press, October 2003), from which much of this information has been drawn, is widely regarded as a basic text for documentary filmmakers. Donaldson also contributed his expertise to the Documentary Filmmakers’ Statement of Best Practices in Fair Use.

Fair Use Scenarios[PDF]

Here are four scenarios, or hypothetical situations, that a documentary filmmaker might find him or herself facing. The four scenarios are each linked to one of the Statement’s categories. These can be used for classroom discussion, and to inspire you to write other scenarios.

Fair Use and Best Practices: Surprising Success[PDF]

By Pat Aufderheide and Peter Jaszi
Aufderheide and Jaszi discuss the successes of the Statement of Best Practices in an article published in Intellectual Property Today.

Copyright, Fair Use and Motion Pictures[PDF]

by Peter Jaszi, Washington College of Law, Program on Information Justice and Intellectual Property
Motion Pictures and Copyright Discipline

How Documentary Filmmakers Overcame their Fear of Quoting and Learned to Employ Fair Use[PDF]

by Pat Aufderheide
A Tale of Scholarship in Action, this article appeared in the International Journal of Communication, Vol 1 (2007)

How to Find Out What is in the Public Domain[PDF]

Professor Peter Hirtle explains when copyrighted material falls into the public domain.

Fair Use: An Essential Feature of Copyright[PDF]

Hearing testimony by Peter Jaszi explains the legal significance of the doctrine of fair use, for creators, consumers and commerce.

“Yes, You Can!”—Where You Don’t Even Need ‘Fair Use’[PDF]

This helpful guide by Peter Jaszi offers insight into what falls into the category of free use.

Statement of Best Practices FAQ[PDF]

Read a FAQ about the Statement of Best Practices in Fair Use

Untold Stories: Creative Consequences of the Rights Clearance Culture[PDF]

By Pat Aufderheide and Peter Jaszi
The Documentary Filmmakers’ Statement of Best Practices began with a study demonstrating the problems that documentary filmmakers face in getting and controlling rights for their creative work. Here is the 2004 report, funded by the Rockefeller Foundation.

• Untold Stories Interview Transcript
  Click here for a transcription of the interviews with filmmakers.
• “Docu makers rallying for fair use of fair use”
  Written by Gregg Kilday, published in the Hollywood Reporter.
• “Copyright isn’t the Last Word”
  An emerging “fair use” doctrine lets makers of documentary films use some material without obtaining a license. Written by Elaine Dutka, published in the LA Times.
• “Doc-makers Get Specific About Copyright Fair Use”
  Written by Steve Behrens, Published in Current Magazine