Fair Use Misconceptions and Filmmaker E&O Insurance Part II

Posted by Casey Budden on Oct 24, 2018 12:52:59 PM

 

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FAIR GAME? - A FAIR USE PRIMER FOR DOCUMENTARY FILMMAKERS (Part 2)

Not all uses of copyrighted material in your documentary will require you to obtain permission from the copyright holder. If you can argue that your use of the material in question meets the criteria to be considered fair use, it may be acceptable.

However, you’re still not sure how to figure out if your chosen use of the material will pass the test or not; there’s still a lot of grey area. Below, we will attempt to shed some light on some common misconceptions about fair use.

  • If I only use a few seconds of the underlying work, I should be okay.” The logic behind this is easy to follow and, as discussed in our previous article, there is some truth to it. The more you borrow from a previous creator, the more likely a lawsuit—it’s more likely the rights holder will take notice, and more likely that they’ll feel their commercial interests have been impaired. However, the proportion of the original work that is used is just one of a myriad of factors a judge would consider in the event of a copyright dispute.

 

  • “I got it from the Internet, so it should be free to use.” This misconception is less common than it used to be, but still exists. In its early days, the Internet was thought of as a kind of “Wild West” where the traditional legal frameworks didn’t necessarily apply. Today, as the Web becomes more sophisticated and ubiquitous, we know that’s no longer true. The general legal understanding now is that the moment a work is fixed in a particular creative medium, copyright exists. For example, technically speaking, a copyright exists the moment a person takes a photograph. For that reason, when making use of copyrighted material from the internet, the documentary filmmaker must exercise a level of care equivalent to that used when considering the use of any other type of copyrighted material.

 

  • “I’m using copyrighted material, but it’s okay because I gave credit to the author.” It may seem like this is just common sense—how could anyone claim that you’ve ripped off their work if you openly attribute it to them? In reality, this is not an automatic defense. In fact, a court of law could argue that by giving credit to the author, you are implicitly acknowledging that the material in question belongs to them. Without knowing it, you may also be tacitly validating their claim of ownership (and potentially their claim of infringement). This is not to say that giving credit to the owners of copyrighted material is not the right thing to do (it is), just that doing so in itself is not a complete defense against claims of copyright infringement.

 

  • “I need to ask permission from the copyright holder first.” Referring back to #3 above, you’ll recall that a rights holder might actually interpret your request for permission, in itself, as a sign that infringement has taken place (“if you’re asking me for permission, you already know you don’t have the right to use it”). Another perfectly logical assumption that does not necessarily hold in the complicated landscape of copyright issues. If your use of the copyrighted material in question already falls within the definition of fair use, you are not required to obtain permission from the rights holder first.

Sound complicated? It is. As we’ve shown, although the law does provide some latitude for documentary filmmakers to use copyrighted materials in a new creative work, there are a lot of issues to consider. An understanding of fair use is an invaluable tool for the documentary filmmaker, but is not sufficient to keep your production safe. You’ll also need an errors & omissions (E&O) policy which will ensure you’re covered in the event that you missed something. Contact us.

Tags: Fair Use for Documentaries, Fair Use Doctrine, E&O Policy for producers, producers errors and omissions policy, producers e and o insurance quote

Fair Use and E&O Insurance for Filmmakers - Part 1

Posted by Casey Budden on Oct 24, 2018 12:48:02 PM

 

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FAIR GAME? - A FAIR USE PRIMER FOR DOCUMENTARY FILMMAKERS (Part 1)

“If I have seen further, it is by standing on the shoulders of giants.” –Isaac Newton

As a documentary filmmaker, you’ll likely need to make use of copyrighted materials at some point in your production. Indeed, it’s almost impossible to avoid: film clips, music and archival interviews are indispensable tools for lending depth, color and authority to your production. However, securing the rights to such materials can be difficult, prohibitively expensive and, most importantly, fraught with potential danger if the rights holders feel that their copyright has been infringed.

For example: you’re making a documentary about Hammer Horror films of the ‘50s and you use a short clip of Christopher Lee baring his fangs. You haven’t obtained permission. Will you be sued?

The legal doctrine of Fair Use permits creators a degree of freedom to incorporate copyrighted works of others into a new creative work. The law recognizes that the rights of copyright holders to enjoy the profits of their creations must be balanced with the rights of creators to enjoy freedom of expression and build upon past works in the creation of their own.

The problem that can sometimes occur is that it can be very difficult to define what constitutes fair use, and rights holders can be aggressive in defending their copyright.

Navigating fair use can be a challenging proposition. It is particularly important to the documentary filmmaker due to the fact that documentarians usually need to use more copyrighted material than, say, the director of a period piece.

There are two important things that you can do as a documentary filmmaker to keep your production safe: understand Fair Use, and purchase Errors & Omissions Insurance. The first will help you avoid being sued; the second will help protect you if you are.

Understanding Fair Use

You want to use a short clip of music or film in your documentary. You might have a limited budget. Traditional wisdom dictates that every piece of copyrighted material needs to be cleared and paid for, but this may not be the case if you can argue that your use of the clip in question constitutes Fair Use. How do judges determine if the use of a given clip is Fair Use in any given situation? The following criteria are considered.

  • What purpose the material is used for. Courts generally hold that a use of copyrighted material which is “transformative” meets the criteria to be considered Fair Use. “Transformative” means that the material is made part of a new creative work, for a purpose and context which are different than the original.
  • The nature of the source material. Factual, non-fiction source material which was created for an academic or educational purpose, with the intention of being strictly informative in nature, is less likely to give rise to a copyright claim if it is presented appropriately.
  • How much of the source material was used. The more of the original work is used, the more likely a lawsuit becomes. For example, musicians are more likely to encounter a problem using a lengthy musical phrase copied from a prior artist than they would be using a single breakbeat or horn blast which may no longer be recognizable as part of a prior creative work.
  • How the use of the source material impacts its value. If the rights holder can argue that their profits, potential profits or the integrity of their brand have been impaired by another’s use of their material, it may provide grounds for litigation. For example, a documentarian making a film about Miles Davis might get away with showing a brief clip of Miles playing, but reproducing an entire 15-minute live performance of him is likely going to attract a lawsuit.

 

Armed with this information, you might think that these rules are just common sense, and with an abundance of caution a prudent filmmaker might be able to avoid the possibility of a lawsuit. However, the reality is not so simple. The second part of this article will discuss some common fair use misconceptions.

Tags: E&O Insurance for producers, producers errors and omissions quote, media liability insurance policy, Digital E&O insurance, Fair Use for Documentaries

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