Fair and Square

At the end of last month I went to a Copyright and Fair Use Workshop with Attorney Karen Shatzkin, sponsored by Emerson College’s department of Visual and Media Arts. Karen focused on the basic ideas of copyright and Fair Use as they apply to documentary filmmakers, and I took notes. Filmmakers – don’t quake under the threat of legal action, read up on your rights!

The Copyright Act does not protect ideas, it protects creative expressions of ideas:

– Literary works

– Musical works, including any accompanying words

– Dramatic works, including any accompanying music

– Pantomimes and choreographic works

– Pictorial, graphic and sculptural works

– Motion pictures and other audiovisual works

– Sound recordings

– Architectural works

Copyright does not apply to works created before 1923 – works created before this are in the public domain and you can use them in films to your heart’s content.*

To use copyrighted music in scoring your documentary, you need to get a license from the composer/author (a synchronization license) of the music, or if it’s from a recording, a master use license from whoever holds the rights to the recording. You neve need to get music rights from a performer (though you might have to pay them to do the job), since a musical performance is an ephemeral work, not protected under copyright. This is all basic stuff.

What is more complicated, and more interesting, is Fair Use, a section of the Copyright Act that allows for reproduction or use of copyrighted materials for purposes such as “criticism, comment, news reporting, teaching…scholarship or research.” Fair Use limits copyright to promote creativity and commentary in the arts and sciences, and this breathing room can be a big help to documentary filmmakers.

So, if you’re making a film and you want to reproduce clips of other films, photographs, news footage, poems, music, etc. for the purposes of commenting on them or using them to illustrate your points, you don’t have to ask anyone’s permission or secure licenses – as long as you are on what Karen called the “terra firma” of Fair Use.

She showed us a couple of examples of documentaries that were using clips from other films on solid Fair Use grounds: Godfrey Cheshire’s Moving Midway, which uses clips from Gone With the Wind to critique the Southern plantation myth, and a Goldie Hawn TV biography that shows a clip of the Woody Allen musical Everyone Says I Love You to show off Goldie’s under-appreciated dance talents. In both of these cases, the copyrighted materials were shown to give context and commentary.

Transformation was the key idea that Karen Shatzkin emphasized as deciding whether or not use of copyrighted material falls under Fair Use.  Filmmakers should ask themselves: does the new use of the copyrighted materials add new meaning or a different character to the materials, instead of just reproducing them?

The courts determine whether or not a use is Fair Use on a case-by-case basis, based on the following factors:

  1. Purpose and Character of the use – is the use transformative? Courts also look at whether the use is non-profit or commercial, but if the use is sufficiently transformative, it doesn’t matter if you’re trying to make money – you are allowed to get money from your works of scholarship/commentary/documentary filmmaking!
  2. Nature of the copyrighted work – works that are perceived to be more creative have more protection, so that news-of-the-moment broadcasts get less protection than fiction works, and a snapshot gets less protection than fine art photography. Previously published works have less protection than never-before published ones
  3. Amount  (%) of the original work used – sometimes the whole work can be used under Fair Use (such as in the 2006 case of some Grateful Dead posters transformed into book illustrations), but in general Fair Use is using only what is necessary to prove your point – quoting the work. 30 seconds of a 4-minute song is judged differently than 30 seconds of a 2-hour movie or 30 seconds of a still photograph
  4. Effect of the use upon potential market value of the copyrighted work – the transformative qualities of a work are more important than this, but courts might look at whether the new use of the material is just a substitute for the original, not a commentary on it (ie. a documentary about Elvis that simply repackages all of Elvis’ music to sell to die-hard fans is not Fair Use)

Misc. Helpful Tips:

  • Materials generated by the federal government belong to the public – they are not copyright protected. Mugshots, NASA photos, public records etc. are all fair game for reproduction
  • In the case of interviews, the interviewer, not the interviewee, owns the copyright
  • If you are confident enough of Fair Use, you can access and use materials from anywhere (youtube, libraries, news archives, etc.) without having to go to the copyright holders, who will naturally want to charge for use (they want to make money too!). You can scan photos, rip a DVD or make a photocopy. The Vanderbilt News Archive is a useful resource for accessing news materials.
  • Incidental music can be used without license if “fortuitously captured”; as in the original case to set this precedent, where a music played in a parade was recorded by a news crew. The emphasis on the unplanned nature of the filming as a justification for use is good for documentary filmmakers, but this gets complicated when unplanned musical background turns  into an unlicensed soundtrack that uses the music for its original  purpose – only use what’s necessary to make the point.
  • Credit all Fair Use materials but don’t list them as “courtesy of” since, they aren’t.
  • Don’t use Fair Use materials in advertising or trailers, as a general rule
  • Fair Use does not apply outside of the United States – you might need to secure rights for Fair Use materials when screening in other countries.

Karen talked about specific cases to give an idea of how a body of legal decisions relating to Fair Use has developed over time. It’s interesting stuff and I think she helped to empower filmmakers in the audience who need tcopyrighted materials to make new work. There are lots of nuances to copyright and Fair Use that we couldn’t cover, and sometimes judicious legal advice can save filmmakers time and worry. My take-away from the workshop:  when filmmakers understand the laws and are thinking critically about genuinely commenting on and reworking their source materials, they are using them fairly.

*though we were cautioned that this doesn’t always mean that pre-1923 music is okay to use in a film. Musical didn’t start to function under the Federal Copyright Act until 1072, meaning that works created between 1918 and 1972 are protected until 2067.

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