Five tips for documentary filmmakers who want to make the most of Fair Use.

Under the U.S. Copyright Act, the principle of Fair Use allows documentary filmmakers (among others) to borrow from third party copyrighted works without permission and without payment provided a set of legal standards is satisfied.[1]  Because the particulars of those standards and the ways to apply them are not always crystal clear, deciding whether or not to rely on Fair Use instead of licensing a clip is best viewed as an assessment of risk across a scale.   That scale begins positively with “certainly a fair use” and ends with “certainly not.” 

How can a filmmaker, who wishes to put a clip in a documentary from someone else’s film as a Fair Use, best position that use at the positive end of the scale?  Start by asking yourself five questions:

1. Why precisely is this clip being used?  Be as rigorous as possible.  The more limited the identified purpose, the more likely Fair Use standards will be satisfied.
2. Is the function of the clip in your documentary different from the purpose of the original work?  If so, Fair Use will be easier to establish.  This is sometimes referred to as the “transformative” test.  For example, if the clip comes from a news report that documents an event, it would not be transformative to borrow the clip simply to document the same event.  A different purpose would be served, however, if the clip is used to show that the event was the subject of news coverage; or that a particular public official was involved in the event; or as part of an historical sequence (e.g., to show how cultural attitudes changed over time); or to support an argument or thesis.
3. Can the clip be placed into a context of commentary or criticism in the documentary?  Social, political and cultural criticism might be the clearest category of transformative use.  Show a short clip and then comment on it.  (Even easier to defend: show a short clip while running audio commentary over the clip.)
4. What’s the minimum you need to borrow to satisfy the limited purpose you’ve identified for using the clip in your documentary?  The less taken the better.  This is not only a quantitative test (measured in the number of seconds borrowed) but also a qualitative test (don’t take the best part of someone else’s work if it can be avoided).  For example, to establish that a particular actor appeared in a film, you don’t need to borrow an entire scene or the best joke or the most famous dialogue; you probably don’t even need the audio.  You will be tempted to borrow more than you absolutely need in order to make your documentary more enjoyable.  Resist that temptation.
5. Is the borrowed clip in your documentary principally for its inherent entertainment value?  If so, that cuts against Fair Use.  Also, do not use borrowed material for creative flourishes or in order to take advantage of someone else’s distinctive editing. And keep the clip’s original audio and video in synch.  Supply your own entertainment value if you don’t want to license it.[2]

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