Fair Use and Documentaries in Court

 

What does the legal record tell us about fair use in documentaries? Not very much, because there have been so few cases. Between 1996 and 2007, there were only nine cases, and only five plaintiffs in total, since two plaintiffs each brought three of the cases. None of the plaintiffs have been motion picture studios or large archives. In most cases, the defendant won. Where the defendant did not win, the defendant had behaved in ways that documentarians who wrote the Documentary Filmmakers' Statement of Best Practices in Fair Use would not approve.

We can draw some conclusions, even though the legal history is sparse.

  • Most copyright holders, most of the time, appear to avoid lawsuits about fair use; by the same token, users may have been reluctant to assert their fair use rights.

  • The most important 'umbrella" factor courts currently consider in weighing fair use is "transformativeness" -the repurposing of material rather than simply reusing it for the original purpose.

  • In general, courts favor fair use of the kind the Statement endorses.

Los Angeles New Service

Los Angeles New Service v. KCAL-TV, 1999 & Los Angeles New Service v. Reuters Television International, Ltd., 1998. Both of these cases involved use by news services of video of the beating of truck driver Reginald Denny during the 1992 Los Angeles riots. In both cases, the footage, owned by a small company called Los Angeles News Service, which specializes in news footage, was used in news broadcast. The court ruled that the news services were re-using footage for the purpose for which it had originally been captured, to promote news reporting.

Los Angeles News Service v. CBS Broadcasting, 2002

CourtTV used a small excerpt of the same footage of Reginald Denny

Wade Williams Distributors, Inc. v. ABC, 2005

ABC's "Good Morning America" used clips from Robot Monster, The Brain from Palnet Arous and Plan 9 from Outer Space on a segment about fascination with extra-terrestrials. The court found fair use appropriate, because the clips had been recontextualized, in a discussion about the representation of aliens in popular culture. The court emphasized that the law "does not explicitly distinguish between entertaining and serious, plausible and implausible, or weighty or frivolous commentaries…"

Hofheinz v. A&E Television Networks, 2001

Peter Graves: Mission Accomplished, an A&E cable network "Biography" episode about an actor, used unlicensed clips from It Conquered the World. Fair use was deemed aprpopirate because the material was used "for the transformative purpose of enabling the viewer to understand the actor's modest beginnings in the film business." It also noted that "A&E's biography of Peter Graves does not merely purport to supersede the original movie at issue, but to create a new copyrightable film biography."

Elvis Presley Enters., Inc. v. Passport Video, 2003

Passport Video's 16-part video documentary on Elvis Presley's life used much material from television appearances, music and photographs. For instance, in this clip, the extended performance scene of Elvis Presley is unrelated to the interview voiceover.

AGAINST USER. The court ruled against the makers, most importantly because most of the uses were non-transformative. The purpose the documentary put the clips to often "serves the same intrinsic entertainment value that is protected by Plaintiff's copyrights." In this clip, the extended performance scene of Elvis Presley is unrelated to the interview voiceover

Monster Communications v. Turner Broadcasting System, 1996

The TNT made-for-TV documentary, Ali-The Whole Story, used two minutes of clips from When We Were Kings. The court found that the material taken was small, both quantitatively and qualititatively, and that the commercial prospects of the original film were not likely to be affected.

Hofheinz v. Discovery Communications, Inc., 2001

Discovery Learning Channel's program Aliens Invade Hollywood used a clip from Invasion of the Saucermen. The court found the use to be fair because it was transformative in nature, stating that "Discovery used the clips for various purposes, including: (1) to illustrate the theme of the government cover-up; (2) to demonstrate how, and with what special effects technology, aliens have been represented in film; and (3) to provide contrasts between the early science fiction films like Saucermen and more recent films. The fleeting clips betray little of Saucermen's plot, only the fact that aliens visited and the government tried to cover up the evidence."

Hofheinz v. Discovery Communs., Inc.

Hofheinz v. Discovery Communs., Inc., 2001 U.S. Dist. LEXIS 14752 (SNDY 2001) -The court found that " in the 1996 program, "100 Years of Horror" on Discovery, clips from a trailer for the 1957 film "Invasion of the Saucermen" in the 1997 Learning Channel program, "Aliens Invade Hollywood," and from a trailer for "I Was A Teenage Werewolf" and "I Was A Teenage Frankenstein" were fairly used. This was, the court said, because the quoted material did not substitute for the viewing of the original films, and the clips were used for the transformative purpose of enriching the commentary.

Hofheinz v. AMC Productions, 2001

AMC's documentary It Conquered Hollywood! The Story of American International Pictures used material from I was a Teenage Frankenstein, I Was a Teenage Werewolf,The Amazing Colossal Man,The Invasion of the Saucerman,It Conquered the World, and Apache Women. The court found that the quotations were too few and too short to harm the market for the plaintiff's works. It also noted that "the public would be hindered by a denial of defendants' fair use defense. Defendants have gone to considerable length to create a film that documents the origins of AIP and its significant impact on the American movie industry. It contains information which, if the general public does not find interesting, at the very least, movie aficionados across the country will find informative and entertaining."