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Documentary
Filmmakers Adopt Position on Fair Use
A broad
coalition of groups influential in documentary filmmaking
have come together to issue a joint statement as to what they
consider acceptable practices when applying the Fair Use Doctrine
to documentary films.
The Statement
was authored by the Association of Independent Video and Filmmakers;
Independent Feature Project; International Documentary Association;
National Alliance for Media Arts and Culture; and Women in
Film and Video (Washington, D.C., chapter).
This important
Statement will
likely be considered by courts in resolving fair use disputes.
It can be downloaded for free from the Center for Social Media http://www.centerforsocialmedia.org/fairuse.htm
Many
writers and filmmakers
are confused about
the fair use doctrine
and whether they
need permission to borrow from copyrighted works. Documentary
filmmakers are often uncertain whether they can borrow, and
how much they can borrow, to incorporate in their film without
a license. Obviously, a filmmaker preparing an expose or even
taking a critical look at a subject cannot expect the subject
to grant them a license. Robert Greenwald is not going to
get, nor did he even bother to ask, for permission from the
Fox Network for inclusion of their television footage in his
film "Outfoxed: Rupert Murdoch's War on Journalism."
If
the fair use doctrine
applies, no license is needed to borrow from a copyrighted
work. It gives the public a limited right to draw upon copyrighted
works to produce separate works of authorship. Such uses include
fair comment and criticism, parody, news reporting, teaching,
scholarship and research. Thus, a movie or literary critic
does not need permission to include a small quote from a work
being reviewed. It is sometimes said of writers that if you
borrow extensively from one author's work, you are a thief;
but if you borrow from hundreds, you are a scholar. Of course,
the scholar adds value by synthesizing information from prior
works and creating something new.
The Statement
addresses common situations faced by filmmakers such as when
can they quote works of popular culture without permission,
and when will an incidental use of background music or visuals
on a television set be considered a fair use.
In determining
whether the use
of a copyrighted work is fair use, courts weigh four factors:
1) The purpose
and character of the work: A non-profit educational use is
more likely to be considered a fair use than a commercial
use. A commercial use is one that earns a profit.
2) The nature
of the copyrighted
work: There is
greater public interest in allowing borrowing for scientific,
biographical and historical works than for entertainment works.
3) The amount
and substantiality of the portion borrowed in relation to
copyrighted work as a whole: Taking one sentence from a five
hundred page book is more likely to be considered a fair use
than taking a sentence from a ten line poem.
4) The potential
adverse effect
on the market for, and value of, the copyrighted work: If
borrowing from the copyrighted work harms the market for it,
the use is less likely to be considered a fair use. Borrowing
a sentence from a novel and incorporating it in another, completely
different kind of work, such as a scholarly work, is unlikely
to have any effect on sales of the novel. Likewise, borrowing
from a book that is out of print is not likely to have an
adverse impact on its sales.
In applying these
factors to a specific factual situation, it can often be difficult
to predict whether a use will fall within the doctrine. Generally
speaking, a greater
amount of material may be borrowed from non-fiction works
than from fictional works. Clearly, a writer can borrow historical
facts from a previous work without infringing upon the first
author's copyright, because of both the fair use doctrine
and because historical facts are not copyrightable. Moreover,
since factual works, unlike works of fiction, may be capable
of being expressed in relatively few ways, only verbatim reproduction
or close paraphrasing will be an infringement.
Writers should
be more cautious
in borrowing from
novels and other
fictional works. In one case, the author of the book "Welcome
to Twin Peaks: A Complete Guide to Who's Who and What's What," was
found to have infringed the television series "Twin Peaks." The
book contained
detailed plot summaries and extensive direct quotations of
at least eighty-nine lines of dialogue.
One encounters
a lot of grey areas in applying the fair use doctrine. It
is safe to say that a schoolteacher will be protected if she
photocopies a Newsweek article and distributes it to her class
on one occasion. If the schoolteacher, however, photocopies
an entire textbook and distributes it to her students in order
to save them the expense of purchasing their own texts, this
would not be a fair use. But there are many factual situations
that lie between these two extremes; and in those cases it
can be difficult to predict whether the fair use doctrine
will be a good defense.
Copyright
2005 Mark
Litwak
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