Legal Issues in Documentary: Fair Use & Copyright

We take a look at what is and isn't allowed to use, when creating your documentary.

Video Transcript

Tackling a subject inside and out requires grabbing as much content as you possibly can. For all you documentarians out there, you're gonna have to pay close attention to what you can and cannot use for your project. Fair use is a clause that grants video editors access to movies and television. Copyright law allows a person the exclusive right to control the distribution and sale of his or her creation. This is to encourage the creation of new works of art and invention that add value to society. However, there are specific exemptions to that exclusivity that allow others the right to copy or distribute pieces of another person's work under copyright law, called fair use.

Fair use allows users to copy portions of a work in a review for purposes of illustration or comment or to quote short passages in a scholarly or technical work, in order to illustrate or clarify the user's observations. Journalists may also quote speeches or articles. They may transmit images or sounds associated with the work in or near a news-making event. Libraries may reproduce portions of a book to replace missing or damaged pages, and teachers or students may print small parts of a book or essay to illustrate a lesson. Parody is also fair use.

For moviemakers, the issues of fair use most often involve the addition of music to a video, reproduction of video images for other films, and/or the use of dialogue from other works.

Courts consider and balance four factors in determining the fine line between fair use and copyright infringement. For years, fair use has not been a cut and dry proposition. What someone thinks is fair use is often opposed by the copyright holder. A good place to get information about fair use, specifically for documentary filmmakers, is at the American University's Center for Social Media.

Probably the safest solution for using other people's work in your creations is to make sure that you only use items who, by choice or by copyright expiring, is in the public domain. A good conservative rule of thumb is that you should assume that the work is protected by copyright if it has been created after 1922, as all works created before that are now in the public domain. For example, older photographs, paintings, books and sheet music are available for use without permission by the author. Copyright law protects a musical performance recorded after 1922, even if the score was composed before 1922. You could contact the U.S. Copyright Office to find the registered material. Copyright Office personally can conduct a search for a modest fee.

Every state or province has its own film commission or equivalent. Many situations require permission from a bewildering host of overlapping authorities. In the case of larger cities, you may have to obtain permits from a Mayor's office, the county's executive office, the police department, the public works department and/or other transit authority. Certain jurisdictions may grant permits only upon proof that you have purchased suitable liability insurance to protect yourself and the government agencies in charge of the property. As a first step, find out if insurance is a requirement, then ask your insurance agent how to secure short-term insurance protection. The best advice is to attempt to get as much information in policies, procedures and forms by telephone or mail well in advance to your scheduled shoot.

Permit fees can vary to being entirely free to thousands and thousands of dollars, depending upon the length and time of the shoot, the purpose of the video, the time of day and the property owner or granting authority. In general, you won't need to make royalty payments except occasionally to professional performers. Remember, everything is negotiable. Sometimes a property owner will be flattered to be represented in a video, in which case a copy of the final video will be a sufficient compensation. Perhaps the best solution to the soundtrack problem is to comprise original music or have it composed for you. Local colleges often have students majoring in music. These students may be interested in working with you as long as they receive credit for their compositions. Be sure that you have a written agreement with them, however, so that you will have the rights to their work.

Well, there you have it. Creating a documentary involves a unique ability to be able to tell a story and when telling those stories being able to retain the realism in what it is you're capturing.

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