Copyright & Fair Use, Part One: A Critic’s Concerns — Commentary by Diane Carson

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The theft of intellectual property is one of the most serious crimes of our time. Balancing this (and equally important) is the creation of new works contributing to a vigorous marketplace of ideas involving the analysis and repurposing of existing works. As film critics, to advance analysis, we want to be quoted, accurately and with acknowledgement just as we may cite someone’s review for praise, discussion or debate. For filmmakers, of documentaries and scripted films, inclusion of archival film footage, quotations from books or articles, photographs, sculpture, paintings, music or other artistic assets can historicize an event, reveal character, develop a theme, or provide any number of worthwhile benefits to the storytelling. As long as the asset falls under fair use, this is legal under certain circumstances. We critics should know our rights in this regard, and we should recognize when a director/producer is enhancing a film through what would qualify as fair use assets, what I regard as added value in narrative impact.

In nonfiction films, the fair use of a wide range of assets is integral to our exploration and analysis of the subject and issues at hand. As we critique a work, the wise choice and use of archival material (perhaps licensed, perhaps used pursuant to fair use) is an important criterion in our evaluation. Our appreciation of the footage incorporated, its ability to provide evidence for an argument or to reveal a person’s behavior in a compelling way, may well factor into our critique. Though we won’t usually know whether the filmmakers invoked fair use, recognition of such assets acknowledges the difference “other people’s footage” can make in mounting a convincing argument or providing fascinating insights into an individual’s life. Our acknowledgement of such elements, and an awareness and mention of the fair use value, might encourage more education about fair use for all of us and/or reinforce for the filmmaker their due diligence in adding value and—this is extremely important—sustaining creativity and a robust marketplace of ideas.

Background on Fair Use and Why It Matters

Fair use is critical to the vigorous debate surrounding creativity and intellectual property, for fair use must be claimed, when legal, to further artistic endeavor and to invigorate examination of ideas and values. When fair use is not understood and employed, creative endeavors suffer. As one example, the February 2014 College Art Association report “Copyright, Permissions, and Fair Use Among Visual Artists and the Academic and Museum Visual Arts Communities” finds that “one-third of visual artists and visual arts professionals have avoided or abandoned work in their field because of copyright concerns.”

On the other hand, the February 22, 2014 New York Times Arts section led with the headline “Photographers Band Together to Protect Work in ‘Fair Use’ Cases.” These two examples alone highlight the critical need for accessible and amply illustrated clarification of fair use, both to encourage creative pursuits and to protect artists’ work.

Read: Copyright & Fair Use, Part Two: An Historical View and Contemporary Application in Nonfiction Film

EDITOR’S NOTE: AWFJ member Diane Carson is co-producer/director (with Robert Johnson, Jr) of Other People’s Footage: Copyright & Fair Use, a documentary that explores the three questions crucial to determining fair use exemptions, and presents illustrative examples from nonfiction, fiction, and experimental films that use footage, music and sound from other individuals’ creations —- without permission or paying fees. Through on-camera interviews with 19 noted documentarians, film and legal experts, OPF also clarifies legal issues regarding trademark, parody, shooting on location or in a controlled setting and reviews relevant court cases.

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Diane Carson

Diane Carson, Ph.D., Professor Emerita, has reviewed films for over 25 years and has covered the Cannes, Telluride, Toronto, Palm Springs, and Sundance festivals. She writes for KDHX, 88.1 FM. St. Louis’ community radio. One of the founders of the St. Louis International Film Festival, she continues to serve on juries. A past president of the University Film and Video Association, she taught film studies and production at St. Louis Community College and at Webster University. Her new book, written with two colleagues, is “Appetites and Anxieties: Food, Film, and the Politics of Representation,” Wayne State U. Press, 2014.