Part Three: Fair Use and Scripted Films — Diane Carson

As established in Copyright and Fair Use, Part One and Part Two of this three part report, the concept of Fair Use, as supported by the U.S. Constitution, derives from the limitation and application of the Copyright Act. Copyright exists for a limited period of time in order to encourage the creation of new works of all kinds, including the analysis and critique of existing works, a principle that applies most directly to our jobs as film critics. In brief, fair use means legally using preexisting material without payment to a copyright holder.

In all instances, what qualifies as fair use has emerged from court decisions, “transformative use” a guiding concept that emerged from Judge Pierre N. Leval’s decisions as Senior United States Circuit Judge of the U.S. Court of Appeals for the Second Circuit, New York. A lead attorney in formulating and communicating guidelines for fair use, lawyer Michael C. Donaldson (Donaldson + Callif, LLC) has formulated the three questions listed in Part 1 of this series: is the asset illustrating a point already being made, do you use no more than is reasonably appropriate, and does the average viewer understand the point. A solid “Yes” to these three questions equals a firm fair use application.

There are, of course, gray areas in which judgment must be applied as to the legitimate or egregious use of pre-existing assets. For films, these assets include archival footage, news programs, music, and all aspects of art direction including props, paintings, sculpture, etc. The importance of fair use to documentaries is fairly obvious and, when sound decisions are made, has been upheld in numerous court cases. Perhaps more surprisingly, the principles of fair use apply equally to scripted films, from art direction to props, news footage to pop culture references. As film viewers, we usually do not know what assets were licensed or used pursuant to fair use, though end credits will at times suggest fair use. In any case, I often comment on the wise choice of archival material in nonfiction as well as fiction films, i.e. those that are scripted. Most often, scripted films based on historical figures or incidents will rely most heavily on fair use for assets. As in part 2, several examples best illustrate the legitimate incorporation of pre-existing assets giving this concept real-life application.

Director Pablo Larraín’s No (2012), nominated for the Academy Award for Best Foreign Language Film, chronicles the 1988 Chilean referendum to deny General Augusto Pinochet eight more years as dictator. The electorate would vote a straightforward Yes or No. Interspersed within several newly shot scenes, Larraín incorporates original 1988 television footage of Pinochet and the campaign, adding historical authenticity to this scripted dramatization of the plebiscite.

In the scripted, historically based LBJ, director Rob Reiner uses the original 1963 CBS news footage of Walter Cronkite announcing President Kennedy’s death. The attorneys reviewing this considered it transformative for that critical moment when the world received televised confirmation of President Kennedy’s death. It reinforces a specific point already being made about the stunning tragedy, is contextualized, is historically accurate, and therefore included with solid affirmation of fair use.

In a less tragic but similar manner, director Clint Eastwood incorporates the original Ed Sullivan introduction to the Four Seasons’ appearance on his television show in Jersey Boys (2014). First used in the musical play and subsequently challenged, the courts held that this appearance on the Ed Sullivan Show was seminal to the rise of the Four Seasons and, therefore, fair use.

Director Danny Boyle’s film Steve Jobs (2015) would be incomplete dramatically without the iconic 1984 Super Bowl Apple commercial, a landmark in Jobs’ career. Though the Jobs’ estate was not pleased with the portrayal of Steve Jobs, Universal (the production company) decided that the way it figured into the dramatic unfolding of Jobs’ life made it solid fair use, and included it, shown not in its entirety but broken into several shots with the scripted characters commenting on and watching it.

Edward Snowden has been the subject of both director Laura Poitras’ Academy Award winner for Best Documentary Feature (2015) and the scripted film Snowden (2016), directed by Oliver Stone. Both incorporated actual CNN footage of news footage, in particular Piers Morgan discussing Snowden’s actions. In both the documentary and the scripted film, fair use permitted legal incorporation of these segments.

Director Richard Linklater’s 2014 Boyhood, nominated for six Academy Awards, includes segments from televised Iraq war news reports as well as a Lady Gaga music video used pursuant to fair use. Boyhood is a completely scripted film covering over twelve years in the characters’ lives (and shot over that lengthy a time period), these assets explicitly communicate historical reference points. In addition, as the media world increasingly intrudes into the milieu, pop culture, via music video, for example, creates a shorthand for revelation of personality—choices, taste, and time spent.

Other examples include fair use justification of props (the mobile hanging over the crib in Immediate Family [2003]) and art (paintings on the wall in Made in America [1993[). The principle has received endorsement in through production decisions that have been upheld in numerous court cases.

Always balancing out this right is the desire of all producers, creators, and critics to be quoted fairly, without copyright infringement. It behooves all of us to know our rights, to appreciate the integration of well-used, informative fair use assets, and to note such awareness in our reviews, when it can be verified. At the very least, I often applaud wise choices for archival footage and the positive addition of assets clearly derived from previous works.

For more information and with my appreciation for all they’ve taught me, I recommend Michael C, Donaldson and Lisa A. Callif’s Clearance & Copyright: Everything You Need to Know for Film and Television, 4th edition. Los Angeles: Silman-James Press, 2008 and Pat Aufderheidi and Peter Jaszi’s Reclaiming Fair Use, 2nd edition. Chicago: University of Chicago Press, 2018. I also recommend visiting the website: www.donaldsoncallif.com and www.cmsimpact.org

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.