8.1 Copyright and fair use

Copyright and fair use are crucial concepts for documentary filmmakers. They balance creators' rights with public interest, allowing limited use of copyrighted material for purposes like criticism or education. Understanding these principles helps filmmakers navigate legal complexities and make informed decisions.

Documentarians often rely on fair use to incorporate copyrighted content into their work. This doctrine allows for transformative uses that add new meaning or context. However, filmmakers must carefully consider the four factors of fair use and explore alternatives like public domain works or Creative Commons licenses.

Copyright basics

• Copyright is a form of intellectual property protection that grants exclusive rights to the creator of an original work, such as a documentary film
• Copyright law aims to balance the rights of creators to control and benefit from their works with the public interest in accessing and building upon creative works
• Copyright protection arises automatically when an original work is fixed in a tangible medium, such as a film recording or script

Purpose of copyright

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• Encourages the creation and dissemination of new works by providing creators with exclusive rights to control and profit from their creations
• Promotes the progress of arts and culture by incentivizing creators to invest time and resources into producing original works
• Balances the interests of creators with the public interest in accessing and using creative works for education, criticism, and further creative development

Copyright vs public domain

• Copyright protection is limited in duration, after which the work enters the public domain and can be freely used by anyone without permission or compensation
• Works in the public domain include those whose copyright has expired, works created by the U.S. federal government, and works deliberately placed in the public domain by their creators
• Public domain works can be valuable resources for documentary filmmakers, as they can be used without the need for clearance or licensing fees

Copyright duration

• For works created on or after January 1, 1978, copyright protection generally lasts for the life of the author plus 70 years
• For works made for hire or anonymous works, copyright lasts for 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter
• Older works may be subject to different copyright terms based on the laws in effect at the time of their creation or publication

Exclusive rights

• Copyright law grants the owner of a copyrighted work a bundle of exclusive rights, which include the rights to reproduce, distribute, perform, display, and create derivative works based on the original
• These exclusive rights allow the copyright owner to control how their work is used and to receive compensation for its use by others
• Documentary filmmakers must be aware of these rights and obtain necessary permissions or licenses when using copyrighted material in their films

Right of reproduction

• The right to make copies of the copyrighted work, such as creating DVD copies of a documentary film for distribution
• This right also covers the creation of digital copies, such as uploading a film to a streaming platform or creating digital backups

Right of distribution

• The right to distribute copies of the copyrighted work to the public by sale, rental, lease, or lending
• This right applies to both physical copies (DVDs) and digital distribution (video-on-demand platforms)

Right of public performance

• The right to perform the copyrighted work publicly, such as screening a documentary film in a theater or at a festival
• Public performance also includes broadcasting the work on television or streaming it online to a public audience

Right of public display

• The right to display the copyrighted work publicly, such as showing stills or clips from a documentary film in a public exhibition or on a website
• This right applies to both physical displays and digital displays of the work

Right of derivative works

• The right to create new works based on the original copyrighted work, such as creating a sequel, remake, or adaptation of a documentary film
• This right also covers the creation of works in different media, such as turning a documentary film into a book or a podcast series

Copyright ownership

• Copyright ownership determines who has the exclusive rights to control and benefit from a copyrighted work
• In general, the creator of a work is the initial owner of the copyright, but there are important exceptions and variations to this rule
• Understanding copyright ownership is crucial for documentary filmmakers to determine what rights they have in their own works and what permissions they need to obtain when using others' works

Work made for hire

• A work made for hire is a work created by an employee within the scope of their employment or a work specially commissioned for use in specific types of works, such as a contribution to a collective work or a part of a motion picture
• In a work made for hire situation, the employer or commissioning party is considered the author and owner of the copyright, rather than the individual creator
• Documentary filmmakers should be aware of work made for hire provisions in their employment contracts or freelance agreements, as they can affect ownership of the final work

Joint authorship

• A work of joint authorship is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole
• In a joint authorship situation, the co-authors are co-owners of the copyright and have equal rights to use and license the work, subject to accounting to the other co-owners for any profits
• Documentary filmmakers should have clear agreements with their collaborators regarding ownership and control of the final work to avoid disputes over joint authorship

Licensing and assignment

• A copyright owner can transfer some or all of their exclusive rights to others through licensing or assignment
• Licensing grants permission to use the copyrighted work in a specific way for a specific period of time, while retaining ownership of the copyright
• Assignment transfers ownership of the copyright entirely to another party
• Documentary filmmakers may need to license or assign rights in their own works to distributors or broadcasters, and may also need to obtain licenses for the use of others' copyrighted material in their films

Copyright registration

• Copyright registration is the process of recording a copyright claim with the U.S. Copyright Office
• While copyright protection arises automatically upon creation of a work, registration provides additional benefits and is required before filing a lawsuit for infringement
• Documentary filmmakers should consider registering their works to secure these benefits and to have a public record of their copyright ownership

Benefits of registration

• Establishes a public record of the copyright claim, which can be useful in proving ownership and deterring infringement
• Allows the copyright owner to file a lawsuit for infringement in federal court
• If registration is made within three months of publication or prior to infringement, the copyright owner may be eligible for statutory damages and attorney's fees in a successful infringement lawsuit

Registration process

• To register a copyright, the owner must submit a completed application, a nonrefundable filing fee, and a deposit copy of the work to the Copyright Office
• The application can be filed online or by mail, and must include information about the work, the author(s), and the copyright claimant(s)
• The Copyright Office reviews the application and, if approved, issues a certificate of registration

Deposit requirements

• The deposit requirement for copyright registration is a copy or copies of the work being registered, which the Copyright Office uses for examination and to create a public record
• For most works, including documentary films, the deposit requirement is one complete copy of the best edition of the work
• The Copyright Office has specific requirements for the format and quality of the deposit copy, which may vary depending on the type of work being registered

Copyright infringement

• Copyright infringement occurs when someone uses a copyrighted work without permission in a way that violates one or more of the copyright owner's exclusive rights
• To prove infringement, the copyright owner must show that they own a valid copyright in the work and that the alleged infringer copied protected elements of the work without authorization
• Documentary filmmakers must be careful to avoid infringing others' copyrights when using third-party material in their films, and should also be aware of their rights and remedies if their own works are infringed

Elements of infringement

• Copying: The alleged infringer must have actually copied the protected work, either directly or indirectly
• Substantial similarity: The alleged infringing work must be substantially similar to the protected work, meaning that it copies protected expression and not just ideas or facts

Contributory infringement

• Contributory infringement occurs when a party knowingly induces, causes, or materially contributes to the infringing conduct of another
• This can apply to parties who provide services or equipment that enable or facilitate infringement, such as file-sharing websites or DVD burning software
• Documentary filmmakers should be cautious about using services or equipment that could be used for infringing purposes, even if they are not directly engaging in infringement themselves

Vicarious liability

• Vicarious liability for infringement occurs when a party has the right and ability to control the infringing activity of another and derives a direct financial benefit from that activity
• This can apply to parties such as employers, concert venue owners, or online platform operators who have control over and profit from the infringing activities of others
• Documentary filmmakers should be aware of their potential vicarious liability if they have control over and benefit from the infringing activities of their employees, contractors, or distributors

Remedies for infringement

• Injunctions: A court order requiring the infringer to stop the infringing activity and prevent future infringement
• Actual damages: Compensation for the copyright owner's losses resulting from the infringement, such as lost sales or licensing revenue
• Statutory damages: A set amount of damages per work infringed, ranging from $750 to$30,000 (or up to $150,000 for willful infringement), available if the work was registered before the infringement began
• Attorney's fees and costs: The court may award the prevailing party their reasonable attorney's fees and costs in an infringement lawsuit

Fair use doctrine

• Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
• The fair use doctrine is an important limitation on copyright protection that helps balance the rights of copyright owners with the public interest in free expression and the creation of new works
• Documentary filmmakers often rely on fair use to incorporate copyrighted material into their films for purposes of commentary, criticism, or historical context

Purpose of fair use

• Promotes freedom of expression by allowing the use of copyrighted material for socially beneficial purposes such as criticism, commentary, and education
• Facilitates the creation of new works that build upon and transform existing works, enriching cultural discourse and advancing knowledge
• Provides a "safety valve" for uses of copyrighted material that may technically infringe but are nonetheless socially desirable and do not unduly harm the copyright owner's interests

Four factors of fair use

• Purpose and character of the use: Whether the use is for nonprofit, educational purposes or for commercial gain, and whether the use is transformative or merely duplicative
• Nature of the copyrighted work: Whether the work is factual or creative, and whether it is published or unpublished
• Amount and substantiality of the portion used: How much of the copyrighted work is used, and whether the portion used is the "heart" of the work
• Effect on the potential market for or value of the copyrighted work: Whether the use competes with or substitutes for the original work in the marketplace

Transformative use

• A use is transformative if it adds new expression, meaning, or message to the original work, rather than merely duplicating it
• Transformative uses are more likely to be considered fair use because they further the goal of copyright law to promote the creation of new works
• Examples of transformative uses in documentaries include using clips for criticism or commentary, or incorporating material into a new context to convey a different message

Parody and criticism

• Parody and criticism are classic examples of fair use because they transform the original work and provide social commentary
• A parody imitates and ridicules the style or content of a well-known work for comic effect, while criticism analyzes and evaluates the work's merits and flaws
• Documentary filmmakers may use clips or excerpts of copyrighted works for purposes of parody or criticism, but should be careful to use only as much as necessary for their critical or parodic purpose

Educational use

• The use of copyrighted material for nonprofit educational purposes is a favored use under the fair use doctrine
• This includes the use of excerpts or clips in classroom teaching, educational screenings, or research
• Documentary filmmakers may be able to claim fair use for educational uses of their films, such as screening them in schools or universities for teaching purposes

Fair use in documentaries

• Documentary films often rely on fair use to incorporate copyrighted material such as footage, photographs, music, and other media into their works
• Fair use allows documentary filmmakers to use this material for purposes of commentary, criticism, or historical context without obtaining permission or paying licensing fees
• However, fair use is a complex and fact-specific doctrine, and filmmakers should carefully consider the four factors and consult with legal experts when relying on fair use

Incidental capture

• Incidental capture refers to the unintentional or fleeting inclusion of copyrighted material in a documentary scene, such as a poster or song playing in the background
• This type of use is more likely to be considered fair use because it is not the focus of the scene and does not use more of the copyrighted work than necessary
• However, filmmakers should still be cautious about incidental capture and consider whether the use is truly incidental or could be seen as using the copyrighted work for its own sake

Historical and biographical uses

• Documentaries often use copyrighted material such as photographs, footage, or music to provide historical context or to illustrate the life and work of a biographical subject
• These uses may be considered fair use if they are used for the purpose of commentary, criticism, or scholarship and do not use more of the copyrighted work than necessary for that purpose
• Filmmakers should be careful to use only as much of the copyrighted material as necessary to make their historical or biographical point, and should consider whether there are any non-copyrighted alternatives available

Clearance and permissions

• Even if a use of copyrighted material may qualify as fair use, some filmmakers and distributors may still choose to seek clearance or permission from the copyright owner to avoid potential legal disputes
• Clearance involves seeking permission and negotiating a license or release for the use of the copyrighted material, which can be a time-consuming and expensive process
• Filmmakers should weigh the costs and benefits of seeking clearance versus relying on fair use, and should have a clear strategy for clearing rights or asserting fair use

Errors and omissions insurance

• Errors and omissions (E&O) insurance is a type of liability insurance that covers claims arising from the content of a film, including claims of copyright infringement
• Many distributors and broadcasters require documentary filmmakers to have E&O insurance before they will accept the film for distribution or broadcast
• E&O insurance policies often require a legal review of the film's content and a clearance report showing that necessary rights have been obtained or fair use has been properly asserted
• Filmmakers should consider obtaining E&O insurance to protect themselves against potential infringement claims, but should also be aware that insurance is not a substitute for proper clearance or a strong fair use argument

Alternatives to fair use

• While fair use is an important tool for documentary filmmakers, it is not the only way to use third-party material in a film
• There are several alternatives to fair use that filmmakers can consider, depending on the nature of the material and the intended use
• These alternatives can help filmmakers avoid the legal uncertainties of fair use and ensure that they have the necessary rights to use the material in their films

Public domain works

• Public domain works are those that are no longer protected by copyright, either because the copyright has expired or because the works were never eligible for copyright protection in the first place
• Filmmakers can use public domain works freely without seeking permission or paying licensing fees
• Examples of public domain works include works published before 1923, works created by the U.S. federal government, and works whose authors have explicitly dedicated them to the public domain

Creative Commons licenses

• Creative Commons (CC) is a nonprofit organization that provides a set of free, easy-to-use copyright licenses that allow creators to specify how their works can be used by others
• CC licenses range from very permissive (allowing any use with attribution) to more restrictive (allowing only noncommercial or non-derivative uses)
• Filmmakers can search for CC-licensed material using online databases and can use this material in their films according to the terms of the specific license

Royalty-free content

• Royalty-free content is material that can be used for a one-time fee without ongoing royalty payments
• This can include stock footage, music, photographs, and other media that are licensed for use in multiple projects
• Filmmakers can purchase royalty-free content from online marketplaces such as Shutterstock or Pond5, which offer a wide variety of material at different price points

Commissioning original content

• Instead of using existing third-party material, filmmakers can commission original content such as music, graphics, or animation specifically for their films
• This allows filmmakers to have complete control over the content and to avoid any potential rights issues with using pre-existing material
• Commissioning original content can be more expensive than using stock or public domain material, but it can also help give the film a unique and cohesive aesthetic

Best practices

• To navigate the complex world of copyright and fair use, documentary filmmakers should follow some best practices to minimize their legal risks and ensure that they are using third-party material responsibly
• These best practices include conducting thorough research, keeping good records, and seeking legal advice when necessary
• By following these practices, filmmakers can help protect themselves and their films while still taking advantage of the creative possibilities of fair use and other copyright exceptions

Due diligence in clearance

• Before using any third-party material in a film, filmmakers should conduct thorough research to determine the copyright status of the material and whether permission is needed
• This may involve searching copyright records, contacting rights holders, and consulting with legal experts
• Filmmakers should keep detailed records of their clearance efforts, including any permissions obtained or fair use arguments made

Attribution and credit

• Even if a use of third-party material is considered fair use, it is still good practice to give attribution and credit to the original creator
• This shows respect for the creator's work and helps avoid any accusations of plagiarism or unethical behavior
• Filmmakers should follow any specific attribution requirements in the terms of a license or the principles of academic citation

Record-keeping and documentation

• Filmmakers should keep detailed records of all third-party material used in their films, including the source, the rights obtained or fair use arguments made, and any correspondence with rights holders
• This documentation can be invaluable in