Copyright and Fair Use, Part Two: Historical View and Contemporary Application in Nonfiction Film — Diane Carson

Quite simply, Fair Use means using pre-existing footage, music and sound from other individuals’ creations—without permission or paying fees. The concept reaches back to England’s Queen Anne who, in 1709, decreed copyright resided with the writers of books for a limited period after which works enter public domain. Most significantly, the Queen Anne Law of 1709 makes clear that copyright exists in tandem with the encouragement of creation of new works.

The U.S. Constitution followed suit, carrying over that language almost verbatim, asserting [The Congress shall have the power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries” (Article I, Section 8, Clause 8.) Further statutes and copyright law revisions, while extending the years of copyright before works entered public domain, still exist to encourage creation of scientific and literary works. Moreover, the statute does not differentiate among types of works, be they films, songs, statuary, or whether works are fictional or nonfictional.

That the U.S. Constitution authorizes copyright AND fair use surprises many, but it follows. In order to encourage new works of any type, creators must be allowed to quote and comment an existing work in order to discuss, analyze, debate, or praise. Ultimately, the courts determine, on a case by case basis, what is and is not fair use. From numerous cases, the concept of “transformative” use has emerged as a guiding principle.

DETERMINING LEGITIMATE FAIR USE

Additionally, in that regard, three questions crucial to determining the legitimate claim to fair use have emerged. Each of the three questions must be answered with a solid “Yes” for an assertion of fair use to be in the 100% comfort zone. For the preexisting asset for which an individual wants to claim fair use, the critical questions are:

1. Are you using this asset to illustrate a point that you’re already making in your film?
2. Are you only using what is reasonably appropriate for the demonstration?
3. Is the connection between what you’re using and the point that you’re illustrating clear to the average viewer?

A “Yes” to each of these questions solidifies a fair use assertion.

EXAMPLES OF FAIR USE

The following examples should help clarify the principle. Tia Lessin and Carl Deal have produced Michael Moore’s documentaries from his earliest years. For Fahrenheit 9/11 and Bowling for Columbine, they knew Fox News footage was essential. They also knew that Fox News would not license the clips they needed to offer the analysis Moore presented. Since Moore’s analytical approach was clearly transformative, they had no problem claiming fair use.

Similarly, in their 2009 Academy Award-nominated documentary Trouble the Water, Lessin and Deal required media coverage to tell the story of Hurricane Katrina survivors Kimberly Rivers Roberts and her husband Scott, trapped and videotaping in their Ninth Ward New Orleans home. Again, official footage would be difficult, or impossible, to obtain were fair use not the viable option it is.

And in their 2013 documentary Citizen Koch again fair use was a critical tool for incorporating the Fox News footage, among other assets, needed to analyze the political landscape at the time.

Scott Hamilton Kennedy’s 2008 documentary The Garden, also nominated for the 2009 Academy Award for Best Documentary Feature, included numerous fair use assets. These assets included news footage, a videotape of a deposition, political and community presentations.

Director Kirby Dick‘s 2006 This Film Is Not Yet Rated, examining the Motion Picture Association of America’s wacky ratings procedure, incorporated 134 film clips necessary to make its point, all used pursuant to fair use.

Director Morgan Neville’s Twenty Feet from Stardom, winner of the 2014 Academy Award for Best Documentary Feature, included a clip of Michael Jackson, clearly transformative in its commentary since Judith Hill comments on the importance of Jackson in her life.

FAIR USE AND MUSIC

Fair use applies equally to music used, for example, in director Nathan Frankowski’s Expelled – No Intelligence Allowed, which used John Lennon’s Imagine in its argument regarding science. The legendary cinematographer Haskell Wexler, Academy Awards for Best Cinematography for Who’s Afraid of Virginia Woolf? (1966) and Bound for Glory (1976) incorporated portions of a Coors commercial into his documentary Who Needs Sleep?. In it he advocates for safe working conditions for film crews who have too often worked sleep deprived, upon occasion with disastrous consequences.

As these examples illustrate, fair use proves essential for documentarians to address important, potentially controversial issues in their films. Without fair use, individuals would find themselves restricted in their examination of current topics. Furthermore, just as we critics must adhere to ethical principles when quoting others, just as we want to be acknowledged when individuals quote us, our job includes both an appreciation of astute analysis and impressive creations as well as immediate objection to instances of abuse. We all benefit from legitimate fair use which extends equally to scripted films, our next chapter.

Read: Copyright & Fair Use, Part One: A Critic’s Concerns

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.