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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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