Using copyrighted materials in a documentary film is generally allowable if the use falls under one of the following four categories. Please note, however, that “fair use” is a legal defense, it is not a protected right. Many filmmakers have lost litigation when they thought they were covered by fair use. For this reason, the Head of Production has final say over whether the use of copyrighted materials in a given film will be permitted.
Social, political, cultural critique
- Case: Employing copyrighted material as the object of social, political, or cultural critique
- Use: Specific copyrighted work is held up for critical analysis in the same way that a newspaper might review a new book and quote from it by way of illustration. This activity is at the very core of the fair use doctrine as a safeguard for freedom of expression. So long as the filmmaker analyzes or comments on the work itself, the means may vary, the use may be as extensive as is necessary to make the point, permitting the viewer to fully grasp the criticism or analysis.
- Limitations: The use should not be so extensive or pervasive that it ceases to function as critique and becomes, instead, a way of satisfying the audience’s taste for the thing (or the kind of thing) critiqued. In other words, the critical use should not become a market substitute for the work (or other works like it).
Illustration of an argument or point
- Case: Quoting copyrighted works of popular culture to illustrate an argument or point
- Use: Here material of whatever kind is used not because it is, in itself, the object of critique but because it aptly illustrates some argument or point that a filmmaker is developing—as clips from fiction films might be used (for example) to demonstrate changing American attitudes toward race. The possibility that the quotes might entertain an audience as well as illustrate a filmmaker’s argument takes nothing away from the fair use claim. The filmmaker is not presenting the material for its original purpose but harnessing it for a new one.
- Limitations: Documentarians should assure that the material is properly attributed, to the extent possible materials are drawn from a range of different sources, each usage is no longer than is necessary to achieve the intended effect, the material is not employed merely in order to avoid the cost or inconvenience of shooting equivalent footage.
Incidentally captured material
- Case: Capturing copyrighted media content in the process of filming something else
- Use: Documentarians often record copyrighted sounds and images when they are filming sequences in real-life settings. Common examples are the text of a poster on a wall, music playing on the radio, and television programming heard (perhaps seen) in the background. In a documentary, the incidentally captured material is an integral part of the ordinary reality being documented. Where a sound or image has been captured incidentally and without prevision, as part of an unstaged scene, it should be permissible to use it, to a reasonable extent, as part of the final version of the film.
- Limitations: Documentarians should take care that particular content played or displayed in a scene being filmed was not requested or directed; incidentally captured media content included in the final version of the film is integral to the scene/action; content is properly attributed; the scene has not been included primarily to exploit the incidentally captured content in its own right; and the captured content does not constitute the scene’s primary focus or interest. In the case of music, the content does not function as a substitute for a synch track (as it might, for example, if the sequence containing the captured music were cut on its beat, or if the music were used after the filmmaker has cut away to another sequence).
Historical sequence
- Case: Using copyrighted material in a historical sequence
- Use: In many cases the best (or even the only) effective way to tell a particular historical story or make a historical point is to make selective use of words that were spoken during the events in questions, music that was associated with the events, or photographs and films that were taken at the time. In many cases, such material is available, on reasonable terms, under license. On occasion, however, the licensing system breaks down.
- Limitations: Documentarians show that: the film project was not specifically designed around the material in question; the material serves a critical illustrative function, and no substitute exists with the same general characteristics; the material cannot be licensed, or the material can be licensed only on excessive terms relative to the reasonable budget for the film; the use is no more extensive than is necessary to make the point in question; the film does not rely predominantly or disproportionately on any single source for illustrative clips; the copyright owner of the material used is properly identified.
Adapted from Clearance & Copyright, 4th Edition by Michael Donaldson using guidelines established by the American University publication, Documentary Filmmakers’ Statement of Best Practices in Fair Use.