Fair Use Misconceptions and Filmmaker E&O Insurance - Part 2

FAIR GAME? - A FAIR USE PRIMER FOR DOCUMENTARY FILMMAKERS (Part 2)

Applicable to US-based producers only. For a discussion of fair dealing (Canada), click here.

Not all uses of copyrighted material in your documentary will require you to obtain permission from the copyright holder. If you can argue that your use of the material in question meets the criteria to be considered fair use, it may be acceptable.

However, if you’re still not sure how to figure out if your chosen use of the material will pass the test or not; there’s still a lot of grey area. Below, we will attempt to shed some light on some common misconceptions about fair use.

• “If I only use a few seconds of the underlying work, I should be okay.” The logic behind this is easy to follow and, as discussed in our previous article, there is some truth to it. The more you borrow from a previous creator, the more likely a lawsuit—it’s more likely the rights holder will take notice, and more likely that they’ll feel their commercial interests have been impaired. However, the proportion of the original work that is used is just one of a myriad of factors a judge would consider in the event of a copyright dispute.
• “I got it from the Internet, so it should be free to use.” This misconception is less common than it used to be, but still exists. In its early days, the Internet was thought of as a kind of “Wild West” where the traditional legal frameworks didn’t necessarily apply. Today, as the Web becomes more sophisticated and ubiquitous, we know that’s no longer true. The general legal understanding now is that the moment a work is fixed in a particular creative medium, copyright exists. For example, technically speaking, a copyright exists the moment a person takes a photograph. For that reason, when making use of copyrighted material from the internet, the documentary filmmaker must exercise a level of care equivalent to that used when considering the use of any other type of copyrighted material.
• “I’m using copyrighted material, but it’s okay because I gave credit to the author.” It may seem like this is just common sense—how could anyone claim that you’ve ripped off their work if you openly attribute it to them? In reality, this is not an automatic defense. In fact, a court of law could argue that by giving credit to the author, you are implicitly acknowledging that the material in question belongs to them. Without knowing it, you may also be tacitly validating their claim of ownership (and potentially their claim of infringement). This is not to say that giving credit to the owners of copyrighted material is not the right thing to do (it is), just that doing so in itself is not a complete defense against claims of copyright infringement.
• “I need to ask permission from the copyright holder first.” Referring back to #3 above, you’ll recall that a rights holder might actually interpret your request for permission, in itself, as a sign that infringement has taken place (“if you’re asking me for permission, you already know you don’t have the right to use it”). Another perfectly logical assumption that does not necessarily hold in the complicated landscape of copyright issues. If your use of the copyrighted material in question already falls within the definition of fair use, you are not required to obtain permission from the rights holder first.

Sound complicated? It is. As we’ve shown, although the law does provide some latitude for documentary filmmakers to use copyrighted materials in a new creative work, there are a lot of issues to consider. An understanding of fair use is an invaluable tool for the documentary filmmaker, but is not sufficient to keep your production safe. You’ll also need an errors & omissions (E&O) policy which will ensure you’re covered in the event that you missed something. Contact us.

Part 1