Fair Use: From Monster in the Shadows to Leveler of the Playing Field

For Kelly Nyks, director of Split: A Divided America-- a documentary film about partisan divides in American society—learning about fair use made distribution possible.

 Split examines a perceived political divide from the perspective of cultural factors such as religion, race and wealth, media, campaign strategies, and the erosion of civil discourse.

Starting below Zero

 “We didn’t know anything about fair use, and were terrified by the misinformation we received,” Nyks told me. “We went to a private lawyer and were told we would have to pay $40,000 for the footage we were using.We made the film with sweat equity and needed E&O to find someone interested in the film.”

In fact, when the team asked the lawyer about fair use, he offered to research the issue for $3,000. “So we would pay $3,000 to educate him about fair use, before we started paying the person he’d find to write a letter for us!” Nyks said. The team couldn’t wait, and they couldn’t pay.

Lifelines to Fair Use Knowledge

 “Through the community of filmmakers in New York, we learned about the work you guys do at AU and the Documentary Filmmakers’ Statement of Best Practices in Fair Use, and also were introduced to the Stanford Fair Use Project. And that began our process of learning about fair use and how it operates.”

 With the help of the Documentary Filmmakers’ Statement of Best Practices in Fair Use, the team went through the film to sort out what was fair use and what wasn’t. Out of 167 clips, they only found two that weren’t.

Doing Their Homework 

“Becoming more comfortable with fair use was step one, the initial step was going through the research online, the second was going through the actual process with Julie Ahrens at Stanford Fair Use Project.,” said Nyks. “For every clip, I had to justify the fair use reasoning according to the Doc Filmmakers’ Statement. You get the fundamentals relatively quickly. Soon it’s like, ‘Yeah, I understand why that is or isn’t.’”

Success

The film got errors and omissions insurance for its first release, and soon will be re-released in the US theatrically and on cable.

 “Until you know about it, fair use is the monster that lurks in the legal shadows. Once you have information, it balances the playing field,” said Nyks. 

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