If you’re planning on paying to license a clip of original work to use in your film, stop and ask yourself: does this clip fall under fair use? If so, you have a right to use it without permission—or payment—according to United States law.

Say you’re writing a book on the outbreak of chlamydia in neo-Nazi circles. You don’t need permission to quote Mein Führer Promiskuität, the boudoir manifesto from Nazi figurehead Allatoff Warts. So why do you need permission to do the same with a film clip? You don’t. However, because of the potential cost of a single copyright infringement lawsuit going to court, it has historically been too risky for filmmakers to chance.

That is, until now.

For too long, filmmakers have been constricted by the perceived need to license any and all footage.

For too long, filmmakers have been constricted by the perceived need to license any and all footage they plan to use in a film. Over the last decade, filmmakers and entertainment lawyers have organized to change that. In this article, we'll give you a quick history of copyright and a solid litmus test for figuring out if your footage falls under Fair Use.

With the wisdom of Brian L. Frye, Associate Professor of Law at the University of Kentucky and documentary filmmaker (Our Nixon), as well as case studies from the seminal Documentary Filmmakers’ Statement of Best Practices in Fair Use manifesto from the Center for Media and Social Impact, here’s a breakdown of what fair use is—and how you should be using it.

{Disclaimer: No Film School is no substitute for a lawyer. This article should be interpreted as an introduction to Fair Use. It is not a legal document.}

Washington_constitutional_convention_1787

A journey through U.S. Copyright Law

Our founding fathers loved protecting original works almost as much as they loved their white stockings. From the get-go, the U.S. Constitution outlined the most important stuff the government had the right to do: punish sea pirates, build post offices, and protect the ownership of work, among other things.

Even back then, along with copyright, Ye Old Legal System recognized common law interpretations of fair use.  Article 1, Section 8 of the Constitution lists the following Congressional powers: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This means that if you were to copy a paragraph from a book in a scholarly article and cite it, that copyright infringement was acceptable, as it was socially productive.

Copyright Act of 1976

Route the time machine to the 1970s. A group of groovy lawyers loved the idea of extending copyright protection, so they cobbled together the Copyright Act of 1976 to take things to the next level.

Attorney at Law Brian L. Frye notes that when Congress passed the 1976 Copyright Act, it dramatically expanded the scope of copyright protection to include—well, everything. "There were no more requirements to register your work," said Frye. "A copyright existed as soon you created a work and fixed it on any sort of physical means—as soon as you wrote it down or drew a picture. Copyright exists by virtue of creating authorship in a physical means."

Fortunately, as Brian points out, the Act also solidified fair use. "The people who drafted this for Congress codified the fair use doctrine," he said. "It looked towards what courts had done in the past, and tried to reflect previous judicial practice. That’s how they decided what uses were accepted as fair use."

This paragraph from Section 107 of the Copyright Act outlines fair use:

 

Copyright_law_code_107

 

Ask yourself these 2 questions first

Now, don't be deterred by stipulation #1; just because you intend to make money off your film doesn't mean you can't benefit from fair use. What the paragraph is really asking is: for what purpose you are using the footage, and how much of it are you using?

According to this interpretation from Documentary Filmmakers’ Statement of Best Practices in Fair Use, which we'll break down further in a minute, there are two main questions to ask when determining fair use cases:

  1. Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original?
  2. Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use? 

Fair use does not protect you from a copyright infringement—it’s a defense in court​.​

Assuming you didn't just add your own opening titles to the feature length version of The Godfather because you thought it looked cool, you are well on your way to a fair use claim.

But wait! The Catch 22 of fair use is that it does not protect you from a copyright infringement—it’s a defense in court. And if the idea of going to court is enough to scare you off from using fair use, you’re not alone. That’s why filmmakers and lawyers have banded together to create a more filmmaker-friendly approach to fair use over the last ten years.

How studios and TV stations stifled fair use

While the book publishing world doesn’t bat an eye about quoting previous works, it's a different story when it comes to reproducing an image in a film. According to Frye, that’s because we tend to observe the norms of the field we work in, irrespective of the law.

"The law is format-neutral," Frye said. "To the law, there’s no difference between literary works and pictorial works for copyright protection. In practice, people see them as being different."

According to Frye, an industry norm developed in the 1960s, '70s, and '80s: if you wanted to use elements of previous work, you were expected to get permission to do so. This is partially due to the fact that the people who were making movies had few distributors available to them. What's more, many outlets, television studios, and movie chains theater owners had fingers in both production and ownership, so it was in their interest to require permission for use of those works.

"If television studios, for example, were approached by an independent filmmaker," said Frye, "it was to their advantage to set an industry standard where they required permission for using any previous work. As the industry changed, it became harder for them to keep the assertion that licensing was always required."

Shutterstock_534242617Credit: Shutterstock

The Great Equalizer: E&O Insurance

Reality, that ever-sobering wretch, had conspired to keep filmmakers from exercising our constitutional rights because of one thing: money (or lack thereof).

Even if you had a fair use claim for using a copyrighted work, the original owner could file a copyright infringement. And if you had to go through the legal proceeding of a litigation claim, even if you won, it might cost you a six or seven figure sum. Needless to say, nobody— least of all documentary filmmakers—can afford that.

But while we may be broke, we are well-networked. Frye explained that things started to change when entertainment lawyers got passionately involved in helping us change the system. Michael Donaldson, a lawyer in LA, sat down and brainstormed the problem. "What if we go to an insurer and show them that this would be the perfect situation for an insurance company?" they asked. "Insurers are already writing Errors and Omissions policies for films, right? You have experience with this already, and it could be a potential goldmine. The risk is very low [for the insurance company] because there’s low probability of high liability, while the potential harm for filmmakers is high. So you can sell them a moderately expensive policy with very little risk of exposure to yourself—especially because most of these are open and shut fair use cases. And you can get yourself some advance insurance just by requiring the fair uses to be vetted by the lawyer, where they can give their opinion on if these fair use claims are valid."

"You shouldn’t be paying licensing fees unless you absolutely have to. You’re just wasting money!"

"For insurers, it was great; now they had an opportunity to make money with very little risk," said Frye. "And for filmmakers, it solved the uncertainty problem that exists with fair use. And that cost is much less expensive than the licensing fees that the previous market was expecting filmmakers to pay. Negotiating licenses for each piece you want to use is really high, and since they are all owned by different people, each wants to get a bigger piece of the pie. This provision of fair use insurance meant there was no longer an incentive for filmmakers to license footage to begin with. That’s what I tell filmmakers—you shouldn’t be paying licensing fees unless you absolutely have to. You’re just wasting money! Also, the owners of the original works don’t actually have the right to force you to pay. And you shouldn’t pay if you don’t have to."

How do I know when footage is fair use? Take this litmus test

There are four classes of fair use that have been outlined in the Documentary Filmmakers’ Statement of Best Practices in Fair Use, which set the stage for the fair use with this 2005 manifesto:

Documentarians believe that their ability to communicate effectively is being restricted by an overly rigid approach to copyright compliance, and that the public suffers as a result. The knowledge and perspectives that documentarians can provide are compromised by their need to select only the material that copyright holders approve and make available at reasonable prices.

Compiled from entertainment lawyers, filmmakers, and film organizations, these are the best guidelines at the moment for filmmakers to understand when they can use footage without permission or licenses. For each example, we've included a paraphrase and include a relevant documentary example. (More examples can be found at the Center for Media & Social Impact. )

If your material can fall under the following four uses, you pass. You have a great case for fair use if you are:

1. Employing copyrighted material as the object of social, political, or cultural critique

Say, for example, you want to make a film that provides unique interpretations of Stanley Kubrick’s masterpiece The Shining. You will, of course, need to show clips of The Shining in your film. A third of the documentary Room 237 consisted of clips from The Shining, but no licensing fees were paid because the clips are being held up for critique and analysis. 

Just make sure you follow the limitations according to the Statement:

  • Critical use should not become a market substitute for the work (or other works like it).

Ows_136745070729029'Room 237,' dir. Rodney AscherCredit: IFC Films

 

2. Quoting copyrighted works of popular culture to illustrate an argument or point

Here’s where you might want to use footage— not to critique that specific clip, but to use the work to illustrate an argument or make a point.

In Bigger, Stronger, Faster, filmmakers used tons of clips from Popeye cartoons to illustrate how the growth of steroid culture paved the way for a win-at-all-costs phenomenon in America. (Here’s a very cool write-up from the producers of Bigger, Stronger, Faster on their process of collaborating with lawyers to decide what was considered fair use.) 

Your argument only holds up if you follow these limitations included in the Statement:

  • The material is properly attributed, either through an accompanying on-screen identification or a mention in the film’s final credits;
  • To the extent possible and appropriate, quotations are drawn from a range of different sources;
  • Each quotation (however many may be employed to create an overall pattern of illustrations) is no longer than is necessary to achieve the intended effect;
  • The quoted material is not employed merely in order to avoid the cost or inconvenience of shooting equivalent footage.

3. Capturing copyrighted media content in the process of filming something else

A poster in someone’s room, a song on the radio, TV in the background— these are copyrighted works we can hardly avoid filming when capturing a story, not to mention that they may be integral details to the character or story itself.

In The Wolfpack documentary, seven homeschooled brothers, confined to their apartment for 14 years, learned about the world by watching movies (and then reenacting them). The film is naturally full of copyrighted films, but this is crucial to the story and protected under fair use. 

Make sure you haven't violated these five specific limitations according to the Statement:

  • Particular media content played or displayed in a scene being filmed was not requested or directed;
  • Incidentally captured media content included in the final version of the film is integral to the scene/action;
  • The content is properly attributed;
  • The scene has not been included primarily to exploit the incidentally captured content in its own right, and the captured content does not constitute the scene’s primary focus of interest;
  • In the case of music, the content does not function as a substitute for a synch track (as it might, for example, if the sequence containing the captured music were cut on its beat, or if the music were used after the filmmaker has cut away to another sequence). 

4. Using copyrighted material in a historical sequence 

If you’re trying to tell a historical story or make a point about history, you will likely need to use words, images, and music that are associated with the times. 

Frye produced Our Nixon, a found footage doc which used never-before-seen footage shot by Nixon’s white house aides. A lot of footage was public domain due to the FBI's confiscation during Watergate, and as much as 50% of the entire finished film was used employing fair use. In all, Frye only got one call from a rights holder questioning the fair use, and the price point wasn’t even worth the insurance deductible.

According to the Statement, to support a claim that a use of this kind is fair, the documentarian should be able to show that:

  • The film project was not specifically designed around the material in question;
  • The material serves a critical illustrative function, and no suitable substitute exists (that is, a substitute with the same general characteristics);
  • The material cannot be licensed, or the material can be licensed only on terms that are excessive relative to a reasonable budget for the film in question;
  • The use is no more extensive than is necessary to make the point for which the material has been selected;
  • The film project does not rely predominantly or disproportionately on any single source for illustrative clips;
  • The copyright owner of the material used is properly identified.

Our_nixon_6'Our Nixon,' dir. Penny Lane, produced by Brian L. FryeCredit: CNN Films and Cinedigm

What if the only way for me to get the footage is via the copyright holder?

Two words: contract law. The drawback of using footage that falls under fair use is that you may not get the quality you want— or get the footage at all— unless you go through the rights holder.

Say the rights holder is a news archive bank. You know they have footage you need. It only exists in their bank, undigitized, hidden away on a film spool. If you want the footage, they will likely ask you to sign a contract agreeing to pay the proper license before they’ll fork over the footage. If you sign the contract, you aren’t liable for copyright infringement, but rather contract law violation.

Frye explained that this is one way owners of original works are trying to maintain control. "They are realizing they don’t have viable copyright claims in a lot of these situations," he said, "so they don’t want to waste money on litigation that is as costly to them as it was for the filmmaker. Not to mention, the risk of loss in litigation would have very bad effects for them in the long term about the scope of copyright ownership. Practically speaking, content owners are using contract law as their workaround. They are saying, 'Look, whether this footage is covered under fair use, you can’t use it unless you can get it. And we are the only people who have it. And we won’t give it to you unless you agree in advance that you will license this material from us if you use it in your film.'"

But contract law works very differently from copyright law. A contract is considered a meeting of the minds, an agreed-upon decision. That’s enforceable in contract, just not in copyright. "They have a contract action against you, said Frye. "That said, it’s much less serious than a copyright infringement. Contract law remedies don’t have that high risk; under contract law, the party of the contract break can only recover actual economic damages, no conjunctive or statutory relief!" 

In Conclusion: Keep track of your materials and save thousands of dollars 

If you keep your materials organized, fair use is a cinch. First, keep track of what you use and where it came from. Try to use public domain footage where you can. If possible, avoid using footage from a source that requires you to sign a contract stating you'll license it. Finally, create a spreadsheet shortlist of everything you use—and what you think the basis is for fair use— and hand it off to your lawyer. Your lawyer will have a conversation with you about anything that might be questionable. They will strike the best compromise between, as Frye describes it, your "ideal aesthetic effect and price point."

"That’s always the same for every production," he continued. "And remember that insurers are insuring on their perceived risk. If an insurer sees you have a work from someone who is known to sue, they may charge more for a higher policy; it’s like if you were to rent a Lamborghini, your car insurance leaving the rental lot will be higher. So try not to raise too many red flags!" 

Last but not least, get E&O insurance to take risk out of the equation. 

So, whether you’re making a movie about promiscuous neo-nazis or your intricate conspiracy theory that Sandy was dead the whole time in Grease, using footage under fair use is your right. Go exercise it!

Here are some great resources on fair use to follow up this article:

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