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Fair Use Frequently Asked Questions
print email discuss By Pat Aufderheide, Peter Jaszi, Maura Ugarte and Michael Miller
1) The Documentary Filmmaker’s Statement of Best Practices is great, but does it actually carry any weight with broadcasters and insurance companies?
2) I have found something I want to fair use according to the statement, how do I go about doing this? Am I required to ask permission, give credit, or use a disclaimer?
3) 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.
4) Does it matter if you are a non-profit organization vs. a commercial organization?
5) Is fair use stealing?
6) I want to use footage, but don’t have access to it. Can fair use help me out?
7) Does fair use apply to still photos, book covers, newspapers, and other non-film items? What about things I find on the web?
8) Does the Filmmakers’ Statement of Best Practices apply to fiction film?
9) How does fair use work in an international context?
10) How does fair use apply to release forms and all that stuff?
11) Can you recommend a lawyer or service to give me legal advice?
1) The Documentary Filmmaker’s Statement of Best Practices is great, but does it actually carry any weight with broadcasters and insurance companies?
It certainly does carry weight! 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 cable casters including IFC. All four of the national errors and omissions insurers now issue fair use coverage, if a lawyer says that the use is within the terms of the Statement. As more gatekeepers endorse the statement, the stronger the statement becomes. Practice makes practice. Practice changes practice.
Click here to read the latest developments in fair use.
2) I have found something I want to fair use according to the statement, how do I go about doing this? Am I required 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 assert your rights! However, 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.
As far as a statement to put at the beginning/end of your piece- there is no one phrase that people generally put to indicate their fair use. In fact many people don't put anything at all! However, consideration for the creators of work is always appreciated and can sometimes cool heads that would otherwise be hot.
3) 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.
The question always is: how and why are you using the material. According to the documentary filmmakers who created the statement, you must contextualize the clip somehow-- it can’t just be the original material without you clearly illustrating how it is relevant to the story.
Here are some examples of successful fair use in documentary film.
4) 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.
5) Is fair use stealing?
Clearly fair use isn't stealing; people who treat all unlicensed use as stealing have forgotten that copyright ownership is a clearly 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 this statement certainly doesn’t. This statement specifies under what limited circumstances users’ rights take precedence over owners’ rights, within today’s law.
This Statement of Best Practices will certainly affect documentary filmmakers equally as users and as owners. In fact, that’s one of the reasons why a statement of what is considered fair by documentary filmmakers has such credibility. They benefit from the owners’ rights in copyright and from the users’ rights in the same law. A filmmaker who, for example, took footage of a public event would be expected to allow access by others in situations prescribed the Statement.
6) I want to use footage, but don’t have access to it. Can fair use help me out?
Sadly, fair use is unusable in a case where you do not have independent access to material. If the owner is the sole-source of the material, fair use will be of little help.
Read this related question about footage access on our fair use blog!
7) Does fair use apply to still photos, book covers, newspapers, and other non-film items? What about things I find on the web?
The statement applies to all copyrighted works, not just film, no matter where you find them.
For example, if you wanted to illustrate a growing interest in the relationship between science in religion, you might find it necessary to show several book covers and newspaper headlines. If you are reproducing book covers and newspaper articles/headlines not so that people can read the articles again, or learn about, say, The Tao of Physics, but because you want to show people that this was a hot topic, then you have a good case for fair use.
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"
8) Does the Filmmakers’ Statement of Best Practices apply to fiction film?
The Filmmakers Statement is tailored to the environment of documentary filmmaking, and can be applied in similar documentary based genres.
9) How does fair use work in an international context?
Your project will be governed by the copyright law of your nation when distributed in your nation. For international distribution there are different issues.
Fair use is a uniquely American right, although all copyright regimes have some exemptions that keep copyright from being private censorship. What is accepted as fair use within the US may indeed not fall under accepted copyright practice in another regime, e.g. the EU. This is something that is driving anyone who works in coproduction or in international distribution crazy at the moment. Some filmmakers are talking about doing research in the EU environment on the consequences of not being able to use copyrighted material in Europe the way filmmakers can in the U.S. But it's just beginning. Filmmakers met in Rome and came out with a declaration to begin this process. We are excited to see what EU filmmakers come up with!
Meanwhile, other regimes are showing great interest in fair use. Canadians are in the process of reinterpreting "fair dealing" (a long long list of very specific exemptions) in a way that makes it much more like fair use. Australians have rewritten their law to introduce "flexible dealing," which could be something more like fair use but hasn't really been used much yet. Still, getting "harmonization" on copyright exemptions is a far way from anything that will make your life easier. So far "harmonization"--the U.S. government likes it—has really favored ownership rights. But the U.S. push for harmonization may also eventually favor fair use rights. It would really help for European producers in particular to understand the importance of balancing features of copyright in order to demonstrate what is at stake creatively, as that discussion goes forward.
10) 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. Please read "Yes, You Can! Where You Don't Even Need 'Fair Use'' to find out more about this, and to learn what else is legal and free!
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.
11) Can you recommend a lawyer or service to give me legal advice?
The Center is not in a position to recommend any particular lawyer to you. But…
The beauty of the code of practices approach used by doc filmmakers, in fact, is that you can use the good judgment of the consensus in your field and not have to depend on lawyers to make the fair use assessment on their own.
A lawyer's job is to be as cautious as humanly possible on your behalf, and caution always leads to licenses, which are utterly uncontestable. Fair use is a right, and like any free speech right, it's possible you might guess wrong.
But every day people use many free speech rights without really thinking twice about them. (You don't really spend much time fretting about the legal consequences of public speaking, because you kind of know where the boundaries are, right?) Every day people who regularly use fair use (for instance, historical scholars, or broadcast news folks) make instant judgments about what's reasonable. That's because they have internalized norms for their field. The Statement makes explicit what those understandings are for doc filmmakers. That's why it's actually helpful to lawyers, archivists, judges and everyone else who would make a judgment about your judgment.
If you still have questions about whether your fair use was appropriate after reading the Statement of Best Practices, please contact your local lawyers for the arts organization.
Many of these organizations' lawyers are new to their profession, so I would encourage you to bring along a copy of the Statement of Best Practices in Fair Use if you invoke fair use in your film.
In addition, all of the attorneys who worked on the legal advisory board for the fair use statement are well versed in fair use, and all take clients (though the academics take clients only occasionally), but other lawyers may well be well qualified. Some lawyers have not encountered the statement yet and will benefit greatly from knowing about this tool.
Discussion
Sorry if this is redundant, but tried to post this comment on Friday, and for some reason it didn’t appear.
The answer to question (5) states that “large media corporations have continuously told people that any unlicensed use is "stealing" ever since file sharing became popular.”
Does this mean that you believe file sharing (which typically involves uploading/downloading of copyrighted music/movies between total strangers) is a fair use?
Posted by steer on May 5, 2008 at 1:23 PM
I have photographs that I took at the Metropolitan Museum, the Louvre, and the Victoria and Albert Museum. They are of various Greco-Roman artworks. As long as I do not have any of the labels from the respective museums in the photo (e.g. only the art piece is in the shot), can I use these photographs in my documentary without a need for a license? Thanks!
Posted by Cliophile on Feb 24, 2009 at 2:48 PM
In answer to “steer,” file sharing without payment is usually stealing. Creating new work and employing copyrighted material without permission or payment, when the use is transformative and only enough has been taken to meet that use, is fair use. In answer to “Cliophile,” your own images of ancient works are yours. It would not matter if you had labels from that museum. Museums often want to restrict photography and to have you use their authorized photograph. But if you could take a picture of a work in the public domain (Please see our document “Yes, You Can!”) then that picture is all yours.
Posted by Pat Aufderheide on Mar 20, 2009 at 12:08 AM
We are doing an educational documentary for the NEA profiling an author and trying to briefly show 3 issues of the New York Times Bestseller List when the author states that his book limbed up the bestseller list. Since the documentary will be produced as free DVDs for classrooms and teachers could this constitute fair use?
And if we are in murky territory, then is it safe to re-create a graphic similar to the bestseller list and just highlight the book title as it rises?
Thanks so much!
Posted by Judy Fernando on Mar 23, 2009 at 4:44 PM
Judy, this is a great example. You would carefully read the Documentary Filmmakers’ statement of Best Practices in Fair Use to determine whether your actual use conforms with what the consensus of filmmakers is. We can’t give you legal advice, but we can assure you that the Statement (which you yourself should read) indicates that many uses like the one you suggest are well within the expectations of most filmmakers for fair use. Insurers for errors and omissions take the Statement as a reliable guide. Whether it’s for a free DVD or one you charge for, inside or outside a classroom, is not important for this decision (which is also clarified in the Statement). Since context is everything, you personally need to make the decision (and if necessary as you loiok for insurance, educate your lawyer and insurer) as to whether the way you re-use this copyrighted material is fair use.
Posted by Pat Aufderheide on Mar 23, 2009 at 4:59 PM
I would like to use part of a popular song as background for a short documentary I am filming. Do I need to get copyright permission? How would I do that? Are the laws different depending on whether I am creating the film for sale, or as a school project?
Posted by Michelle on Mar 30, 2009 at 7:40 PM
Michelle, I think that once you read the Documentary Filmmakers’ Statement of Best Practices in Fair Use, you’ll be able to make up your own mind about this. We can’t tell you, because fair use is dependent on context. The Statement makes clear how you would come to a decision. It does not matter under what circumstances you produce a work; the law is the same. Good reading!
Posted by Pat Aufderheide on Apr 1, 2009 at 12:25 AM
After reading the material contained in the above document. The information appears to be just one vague statement piled upon another. Just try using any Disney, Paramount, FOX, or other copyrighted material (aural or visual) and see how fast a cease and desist order comes your way, along with a big bill for monetary damages. Are any of the authors of the above from the entertainment or broadcast industries or are they made up of mostly folks from the educational world? Hollywood lawyers will sell you house by court order and the educational facility that assured you everything was ok, when you stole (“fair use”) the artistic property of creative people, will not back you. People at educational institutions will quickly distance themselves between you and your new found copyright troubles even they insisted you move forward using “fair use” to steal without written permission of the copyright owner(s). Most educational facilities have a policy that the governing board will not defend an employee in a copyright infringement lawsuit. Beware, this article is full of well meaning green lights. Do you own research, there is plenty of case law that reveals this information is naive wishful thinking.
—Robert (former American Broadcasting Company, and Storer Broadcasting, employee)
Posted by Robert Linkroum on Jun 8, 2009 at 2:03 AM
Robert’s alarmist comments are very typical of the kind of lore that used to be taken seriously by filmmakers who did not know their rights or the law. Robert may not be aware that errors and omissions insurers widely accept fair use grounded in the principles of the Statement and that judges over the last 15 years have issued judgment after judgment wholly in accord with them. There is no evidence of lawsuits filing cease and desist orders for documentary filmmakers. Cease and desist orders are not unheard of these days but they are not backed by lawsuits. A recent attempt by Yoko Ono to bring a lawsuit against a filmmaker who used a clip from a John Lennon song (in “Expelled”) was summarily rejected by the courts. There is a clutch of public interest lawyers including at the Stanford Law School’s Fair Use eagerly awaiting any lawsuit that they can become active in so that they can create pro-fair use precedents, but they are struggling to find lawsuit activity to support. Robert’s well-intentioned cautions can be taken simply as part of the problem.
Posted by Pat Aufderheide on Jun 8, 2009 at 9:12 AM
I have a question and hopefully you could provide me some insight: on the internet “fan world” countless fans create graphics using “copyrighted” screencaps. These are always non-profit, and have been in plain view for 10 years past, but companies scarcely have such material removed. Would this use of screencaps be copyright infringement or fair use?
Posted by Nibs on Aug 13, 2009 at 7:26 AM
Fair use is always a case-by-case judgment, so there is no overarching rule. But the same principles that shape the Codes of Best Practices for documentarians, online video makers, media literacy teachers, and dance archivists could be applied on a case by case basis by anyone producing fan work on the basis of previously copyrighted material. Basic questions are: 1) are you repurposing the material, or using it for the original purpose? (this is the “transformative” purpose, a very powerful element of fair use law) and 2) did you use just enough in order to accomplish your new purpose? (this is linked to the transformative purpose part). You need an answer to those two questions that could satisfy a reasonable person (not the copyright holder, who also might be a reasonable person, perhaps not about their copyright holdings though) who was not a member of the fan community. Fan communities will be in an even stronger position at the moment that they decide to create their own codes of best practices. The Codes of Best Practices facilitated by the Center for Social Media and the Washington College of Law have been crafted by members of use communities, with vetting by experienced lawyers, and have been in continuous unchallenged use in some cases since 2005. Good luck!
Posted by Pat Aufderheide on Aug 17, 2009 at 3:37 PM
Mr./Ms. Nibs:
When you mention “non-profit”, are you or the organization posting these copyrighted items an actual Non-Profit Corporation Corporation (under United States Tax Law)? Be careful about tossing around the “non-profit” phrase unless you really are and you are basing case law advice questions on this. You may want to actually consult a copyright attorney on your end. Relying on folks from the educational world who have no actual commercial or professional experience or connection with the for profit entertainment industry could prove to be litigious.
—Robert
Posted by Robert Linkroum on Aug 24, 2009 at 9:35 PM
Robert’s comments create undue alarm about the material on this site. All the Codes and the Statement have been vetted by a panel of leading copyright lawyers, all of them well-versed in the distinctions mentioned. They and we have worked hard to create an environment where citizens can use their rights without fear.
Posted by Patricia Aufderheide on Aug 26, 2009 at 2:39 PM
I wanted to have a chance to talk more about my own and other’s previous comments and examine some of the actual above producer questions posed here. My words will be based on a modicum of moderation, caution, and sensibility. Any time that anyone, not know personally or professionally, promises absolutes and certainties (from purchasing high dollar amount goods or service or to socially meaningful advice), one may elect to trust the information (such as on the many A.U.S.O.C. Center for Social Media available downloads) but one may also choose to verify beyond the general advice that addresses the producer’s questions. This would be an exercise in addition to the work of the A.U.S.O.C. Center for Social Media, not in opposition to it. Just as the monthly publication, “Consumer Reports,” is great advice for evaluating a new car, but not the only credible tool in the marketplace. Media for general and limited release should be close to “judgement proof.” Read and understand clearly all of the information the A.U.S.O.C. Center for Social Media has to offer. If someone mentions an unblemished track record and hints at future legal defense protection representation from an interested third party, please get it in writing from the third party. But before a producer asks for that, present a preview draft of the work so that it can be reviewed by a legal team (possibly the attorneys in Northern California, if that service is available) with copyright experience, hopefully, with both plaintiffs and defendants, The legal consultation/opinion of your preview draft presentation (well in advance of publishing and/or distributing) could prove to be useful. There will most likely be some editing adjustments that will not only make the piece safe when it comes to meeting the information presented by the author(s) of the A.U.S.O.C. Center for Social Media, but make the purpose and meaning clearer for the audience. In addition, the questions that some of the producers ask here appear to communicate some pre-conceived notions about “non-profit”, or “free DVD’s for classrooms and teachers” as possibly being special and hopefully immune from litigation. There is a steady stream of non-experts (fellow students, non-media employers, and audiences) that have logical sounding opinions that could have negative monetary consequences. Users of this A.U.S.O.C. Center for Social Media site should click on and download all the publication links. The examples and advice here are refreshingly concise and invaluable. There should be concern that often general questions regarding a producer using portions of other’s copyrighted material, in a separate creative work, often lack detail and nuance. Producers should move/not move forward not from fear, but from a place of complete understanding and knowledge of the A.U.S.O.C. Center for Social Media literature. Sometimes, when a producer presents an idea or premise that the intended audience (in-house and/or public) mostly agrees with, the producer will receive a cascade of support and the vetting process may be overlooked or forgotten (especially when a deadline is looming). Errors and Omissions Insurance is available for producers, at a cost, and may be a prudent investment if the medium distributing the work necessitates it. My comments in these writings have been to encourage a cautious approach by an author/producer and for them to stand back, slow down, and get other opinions, Where needed, perform extensive fact-checking to insure fairness and credibility. Michael Moore’s pre re-election documentary on then President George W. Bush comes to mind. The far-right wing dissected this amusing and serious documentary. Moore’s documentary played well to agreeing theatre audiences but, it could be argued, helped to sway swing voters away from voting for the Democratic National Committee party candidate. The very organized far right-wing Republicans along with their radio talk show allies. took the few documented inaccuracies and projected, using hyperbole, that the credibility of the entire documentary should be in question. Moore, who set out to present necessary questions of Bush’s prior and present White House experience(s), unintentionally succeeded in torpedoing his own work…OUCH! The D.N.C. party candidate would, most likely, had just enough swing votes to be successfully elected if Moore’s documentary never saw the dark of the mega-plex. In conclusion, look for a rare worst case scenario of a court decision that does not reflect contemporary interpretations of specific law. Please pardon my long wording here, I hope my meaning is communicated, let me know if more explanation is needed.
—Robert
Posted by Robert Linkroum on Aug 27, 2009 at 1:43 AM
Robert’s advice to read the codes of best practice carefully, and to make all fair use decisions on a case-by-case basis, carefully considering the implications is excellent. Robert also notes that many people place far too much faith in the noncommercial status of their uses of other people’s copyrighted work. it is entirely correct that your use of material in an educational setting or the fact that you’re not making money on it may not be enough to qualify for fair use. (Educators also have specific educational exemptions that may sometimes apply.) The Code of Best Practices in Fair Use for Media Literacy Education goes into detail on applying fair use in educational settings, where educational exemptions may not apply. Robert also notes that errors and omissions insurance is now available for fair use claims. “E&O” is of course mandatory for mos television distribution in any case, and the fact that E&O insurers now accept fair use claims is a direct result of the existence of the Documentary Filmmakers’ STatement of Best Practices in Fair Use. Insurers are of course deeply reluctant to add to their risk, and their acceptance of this Statement as a guide to their own insuring practices is a powerful endorsement of the terms of that Statement.