Relatively few legal decisions address the question of how much borrowing is too much when a documentary maker takes pre-existing music and video on a fair use basis – that is, without asking permission and or paying the copyright owner.  Last week, in a case pitting a music publisher, Red Label Music, against a documentary film company, Chia Productions, a federal court in the Northern District of Illinois contributed a decision to that small group that favored the documentary maker.

The music and video in question as well as the documentary that borrowed from them all relate to the 1985 Chicago Bears. After suffering a single loss in what turned out to be a near-undefeated season, the team found inspiration in a rap song they recorded called the “Super Bowl Shuffle.” Several months later, they went on to defeat the New England Patriots in Super Bowl XX.  Red Label owns the song, the team’s recording of it, and a video that included the music and the team’s performance of it, all of which were excerpted in the documentary.

Chia released that documentary, “’85: The Greatest Team in Football History,” in 2016.  It took eight seconds of the 6-minute song (half of which included lyrics) and 16 one-to-eight second snippets totaling 59 seconds from the video, which also ran about 6 minutes.

In holding that the borrowing satisfied fair use criteria, the court noted:

• Audio and visual elements of the video were in synchronization only in one 8-second snippet; otherwise, the clips were used as “B-roll” with commentators speaking over silent video. [B-roll use is generally not a favored fair use category but here the apparent aim was to give a better sense of what the “Shuffle” was about while minimizing the borrowing.]
• The documentary as a whole was a commentary on the 1985 Chicago Bears as a “sport-social phenomenon.” [Fair use favors a context of criticism and commentary.]
• The documentary added “something new” to the plaintiff’s video snippets, which were used for “factual content” rather than for “expressive content.” [In other words, the borrowed video wasn’t there to entertain; it was used to help explain the team’s mindset and subsequent success.]
• The documentary used the snippets to preserve sports history, and fair use “protects filmmakers and documentarians from the inevitable chilling effects of allowing an artist too much control over the dissemination of his or her work for historical purposes.” (Quoting from an earlier decision.) [Fair use favors historical retrospective.]
• The documentary did not compete with the plaintiff’s video. [No one who wanted to enjoy the music video would gravitate toward the documentary in its place.]
• 17% of the video was taken, but “individual verses” were omitted and the chorus did not appear “in its entirety.” [This percentage is relatively large compared to other cases in which percentages have been given, but the documentary selected judiciously to achieve the relatively limited goal of demonstrating the “Shuffle.”]

Each successive decision interpreting the fair use provisions of the Copyright Act adds to those before it and no single decision can be relied upon as definitive (especially when, like this one, it is subject to an appeal).  But the Red Label Music case does reinforce several longstanding principles in the application of fair use:

–the best context is one of comment and criticism;

–filmmakers should take no more than is necessary to make a journalistic point;

–all other things being equal, historical retrospectives are a favored category.