Fair Use and Documentary Film

Documentary Filmmakers' Statement of Best Practices in Fair Use

Documentary Filmmakers' Statement of Best Practices in Fair Use
Documentary filmmakers have created, through their professional associations, a clear, easy to understand statement of fair and reasonable approaches to fair use. Download this useful handbook, written by veteran filmmakers to help other filmmakers understand some instances where using copyrighted material without clearance is considered fair use. Click here for the full report & here for a list of authors and endorsers of the Statement. 

Fair Use and Best Practices: Surprising Success
Aufderheide and Jaszi discuss the successes of the Statement of Best Practices in an article published in Intellectual Property Today.

Success of the Statement of Best Practices
The Statement has provoked dramatic change in the industry since it was released in November 2005. PBS and ITVS have used the Statement to release programs, and so have cablecasters including IFC. All four of the national errors and omissions insurers now issue fair use coverage routinely, as a result of the Statement.

Untold Stories: Creative Consequences of the Rights Clearance Culture
This study explores the implications of the rights clearance process on documentary filmmaking, and makes recommendations to lower costs, reduce frustration, and promote creativity. It focuses on the creative experience of independent, professional documentary filmmakers.

"Yes, You Can!"--Where You Don't Even Need 'Fair Use'
This helpful guide by Peter Jaszi offers insight into what falls into the category of free use.

Copyright, Fair Use and Motion Pictures
by Peter Jaszi, Washington College of Law, Program on Information Justice and Intellectual Property.

How Documentary Filmmakers Overcame their Fear of Quoting and Learned to Employ Fair Use
by Pat Aufderheide

Copyright Backgrounder
This concise background document describes what copyright is and what can be copyrighted, as well as what material is in the public domain and what is fair useable. Michael Donaldson is an attorney in Los Angeles, many of whose clients are leading documentary filmmakers. His book, Clearance and Copyright (Silman-James Press, October 2003), from which much of this information has been drawn, is widely regarded as a basic text for documentary filmmakers. Donaldson also contributed his expertise to the Documentary Filmmakers' Statement of Best Practices in Fair Use.

 

Fair Use Teaching Tools for Documentary

Fair Use Teaching Tools
The Center for Social Media has created a set of teaching tools for professors who are interested in teaching their students about fair use. The tools include powerpoints with lecture notes, guidelines for in-class discussions and exercises, assignments and grading rubrics. We hope you'll find them useful! 

Fair Use Frequently Asked Questions
Since the release of The Statement of Best Practices we have received many inquires about fair use. Here are some of our more commonly asked items. 

Fair Use Scenarios
Here are four scenarios, or hypothetical situations, that a documentary filmmaker might find him or herself facing. The four scenarios are each linked to one of the Statement's categories. These can be used for classroom discussion, and to inspire you to write other scenarios. The goal of these scenarios is to allow discussion about what the fair and responsible thing to do would be, not to find out "the right answer." These scenarios thus allow students to consider what they think makes sense, in light of the Documentary Filmmakers' Statement of Best Practice to see what professional filmmakers established as principles and limitations. 

Fair Use Language for Course Syllabi
In your syllabus, you often have some information on copyright. Here is some language to include in that section, specifically on fair use. This language has been reviewed by lawyers, including law professor Peter Jaszi of American University’s Washington College of Law and Michael Donaldson of Donaldson and Hart law firm, and it has been approved by the University Film and Video Association for use by its members.

Refrigerator Mothers
In Refrigerator Mothers, about an era when mothers were blamed for their children's autism, J.J. Hanley and David Simpson quoted popular films of the era. In this section, you can see what clips they purchased, which clips they employed fair use for, and their reasonings for each decision.

Fair Use in Documentary Film Discussion Clips
For classroom use - For each video, ask your students to consider the following questions: Why is this video fair use? What specific categories of fair use does the video employ? What arguments can you make for why this video is fair use? For explanations of each video, click here.

Examples of Successful Fair Use in Documentary Film
Filmmakers have been successfully employing fair use, even before the Statement of Best Practices clarified their common understandings. Here are some examples of uncontested choices for fair use. They are organized here according to the principles that filmmakers articulated in the Statement, in the categories used in the Statement. These categories are only four of the most common situations for filmmakers; some uses could be hybrid, and others might fall outside these four categories. We welcome more examples at socialmedia@american.edu

 

More Fair Use Videos

Fair Use and Free Speech

Fair Use and Free Speech explains the Documentary Filmmakers' Statement of Best Practices in Fair Use. It shows when and how it is legal to use copyrighted material within a documentary film. It’s a powerful tool for media criticism and freedom of expression.Fair Use and Free Speech explains the Documentary Filmmakers' Statement of Best Practices in Fair Use. It shows when and how it is legal to use copyrighted material within a documentary film. It's a powerful tool for media criticism and freedom of expression. Click here for more background materials.

Stories Untold
In 2004, Center director Pat Aufderheide and Peter Jaszi, director of the Program on Intellectual Property and the Public Interest at the Washington College of Law, released a study, Untold Stories: The Creative Consequences of the Rights Clearance Culture, that explored issues working documentary filmmakers' faced with copyright law. This short video summarizes the results of that study, and provides background for the newly released Documentary Filmmakers' Statement of Best Practices in Fair Use.

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.

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