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.