FAIR USE IN DOCUMENTARY FILM An Introduction to the Documentary Filmmaker’s Statement of Best Practices In Fair Use An Introduction to the Documentary Filmmaker’s Statement of Best Practices In Fair Use

Remix Culture Video Fair Use and Copyright

What is Copyright? What is copyright? Why does it exist? What is copyright? Why does it exist?

COPYRIGHT Provides incentives for people to create culture Gives creators some control over their work But also puts some limits on that control Provides incentives for people to create culture Gives creators some control over their work But also puts some limits on that control

What would happen if there were no such thing as copyright? What would happen if there were no limits to copyright?

No protection for creators’ work stops creativity BUT Too much protection also stifles new makers’ creativity No protection for creators’ work stops creativity BUT Too much protection also stifles new makers’ creativity

Limitations on the amount of time something can be copyrighted Special exemptions (these include for educators, librarians, public broadcasting, the blind, and other special cases) Copyright law has built in several ways to maintain BALANCE: Fair Use

FAIR USE Section of copyright law that protects the rights of creators who want to incorporate other people’s copyrighted material into their work.

Why is Fair Use Important? WHY IS IT IMPORTANT? Protects Freedom of Speech Safety valve that prevents censorship It gives artists the right to critique or build on existing culture Culture only grows where we are all allowed to repurpose other people’s work

HOW DO I KNOW WHEN TO APPLY FAIR USE? Copyright laws asks two questions: Did the unlicensed use “transform” the copyrighted material by using it for a different purpose? Was the amount and nature of material taken appropriate?

BEST PRACTICES Best Practices = what people practicing in the field think is fair use Best Practices = what people practicing in the field think is fair use Filmmakers are copyright owners and creators and are best suited to figure out what is fair use in the field

Category 1: Using copyrighted material as the object of a social, political or cultural critique From Outfoxed

Category 2: Using copyrighted material of popular culture to illustrate an argument or point From Refrigerator Mothers

Category 3: Capturing copyrighted material in the process of filming something else (Incidental Use) From The New Americans

Category 4: Using copyrighted material in a historical sequence From Karl Rove: The Architect

WHENEVER POSSIBLE YOU SHOULD: Attribute where the clip came from (either on screen or in the credits) Try to take material from a range of sources, not just one source Make sure you’re only using as much as is absolutely necessary to make your point Attribute where the clip came from (either on screen or in the credits) Try to take material from a range of sources, not just one source Make sure you’re only using as much as is absolutely necessary to make your point

What Fair Use is NOT Elvis Presley Enters., Inc. v. Passport Video, 2003

Remix Culture Video FAIR USE AND COPYRIGHT

FAIR USE IS NOW INDUSTRY PRACTICE In 2005, doc filmmakers routinely didn’t use fair use, insurers wouldn’t insure for it, broadcasters wouldn’t air partially insured films 10 years after creating the Statement, doc filmmakers were routinely using fair use All E&O insurers were accepting fair use Most broadcasters were accepting films with fair use in them ( papers.cfm?abstract_id= ) In 2005, doc filmmakers routinely didn’t use fair use, insurers wouldn’t insure for it, broadcasters wouldn’t air partially insured films 10 years after creating the Statement, doc filmmakers were routinely using fair use All E&O insurers were accepting fair use Most broadcasters were accepting films with fair use in them ( papers.cfm?abstract_id= )