Fair Use for Documentary Filmmakers – March 22, 2007

Notes from last night’s Fair Use for Documentary Filmmakers presented by NYWIFT are provided by guest notetaker AMPeters, director of NO Cross, NO Crown, timely and engaging feature documentary that examines whether New Orleans’ music and culture will survive the aftermath of Hurricane Katrina.


Fair Use for Documentary Filmmakers – March 22, 2007
What exactly is Fair Use and when is it fair to use it?
By AMPeters

Rachael T. Krueger: Moderator.

Laura Fleury: Senior Director of Non-Fiction and Alternative Programming at A&E.

Laura Malone: Vice President and Corporate Counsel at Getty Images.

Thea J. Kerman: Attorney for the entertainment, publishing, merchandising, toy and licensing industries.

Stacie O’Beirne: Entertainment Insurance Broker at DeWitt Stern Group.

Lesli Klainberg: Filmmaker and founder of the production company, Orchard Films who just produced documentaries for IFC, with Indie Sex: The Series.

Barbara T. Hoffman: Attorney specializing in art, entertainment and international intellectual property law.


I attended the Fair Use for Documentary Filmmakers program sponsored by New York Women in Film and Television at the Pen and Brush Club in NYC.

The event cost $10 for non-members and it was totally worth it. NYWIFT was organized, well-staffed, and not only gave you excellent reference material, namely the “Documentary Filmmakers’ Statement of Best Practices in Fair Use” brochure, but an Accompanying DVD produced by the Center for Social Media at American University. Since the issue is ever evolving and complex, the event was sold out and attended by a variety of first-time filmmakers and veterans alike.

It was moderated with Rachael Krueger who was cordial and accessible, but also ran the evening gracefully. It was also attended by Carey Graeber President of the Board at NYWIFT who I was too shy to chat with, but just seemed awesome from where I was sitting.

We started with Barbara Hoffman who launched the discussion with the key piece of Copyright Law on Fair Use, Section 107 (excerpt):

In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include
-

(1) the purpose and character of the use, including whether such use
is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted
work.

Hoffman cited one of her own cases, Ringgold v BET which strangely was the exact opposite of what I’d assume anyone would discuss because an artist totally nailed the network for use of her art—and won. However, this was actually a great example because it set the stage for understanding how the court ruled in favor of the artist on counts listed above in Section 107.

As filmmakers or artists, we have the constitutional right to “promote the progress of science and useful arts”. When can one claim fair use and when should we pull back? I learned the following lessons.

1). As Laura Malone said: Nothing is set in stone. I’ll address some good rules of thumb, but by no means does this translate into some kind of legal advice. And though there are guidelines, get a lawyer when looking to sell your film. Period.

2). Thea Kerman made an excellent point that though these Best Practices are a great reference-- it’s not the law. And even though you may be able to declare Fair Use, you still need to get licenses for your music, performances, photographs and footage.

3). Lesli Klainberg was an excellent panelist because her series for IFC was heavy with material she had to clear, but also, she had the heartbreaking experience of having an award winning documentary not being seen by audiences due to issues with copyright. Her practical lessons were to stick to the thesis, be specific in the interviews about what material you’re going to need to see/hear and as a general rule: try not to use more than 2% of a whole film [in the case of using clips from films]. (By the way, this “rule” is an example #1—it’s not law, but an okay rule of thumb). Be diligent and specific about when you’re using what material and for how long. Track your efforts; get releases. Though every network has their own guidelines and requirements for clearance, cover your ass early and thoroughly.

4). Stacie O’Beirne was a great choice for follow up, because she’s an insurance broker for the industry and focused on E&O insurance—Errors and Omissions. I already knew this, but I would like to emphasize it here for you guys:

You really do not need to purchase
E and O insurance until you have distribution

But that does not mean that you shouldn’t follow Klainberg’s advice—in fact—you should. O’Beirne said that if you have a legitimate Fair Use-experienced lawyer on your side, whatever releases, licenses, best efforts track records, etc. etc. will enhance your chances of getting covered. Once covered by E&O, if you or your distributor is sued, you’re insured.

Paul from AIG was in the audience and noted that Trademark is a more aggressive animal when facing the potential for getting sued so watch out.

5). Laura Fleury represented and interesting aspect of this mess in that A&E are copyright holders as well as users. As you saw in Hoffman’s case, the artist needs to be protected as well and so the network takes a very conservative view in their licensing.

If you’re interested in public domain, these guys loved this chart . It’s an awesome at-a-glance start for what is available to you for free.

If you found some of the above lessons somewhat vague and with way too many variables… that would be because that’s the nature of copyright. Never ever assume that having no release or license is okay.

I found this to be intensely informative, especially as I’m posting my feature doc, NO Cross, NO Crown. I am looking forward to the Music Panel coming up since my film has many performances and songs; so obviously, I have tons of work to do.

-amp