Can You Use Advertisements for a Documentary Fair Use?
The use of advertisements in a documentary is something that many wonder about. Asking permission before using copyrighted works is certainly a tricky subject. Especially when there’s fair use policy! Which outlines strict rules under which permission is not required. Filmmakers that choose to use copyrighted works to produce documentary films are generally protected under fair use. But can you use advertisements for a documentary and is it fair use?
What is Fair Use?
Fair use is a form of law in which the only true protection comes in after the fact. That is, when a lawsuit has already been filed and you’re facing a judge in court.
As such, many documentary filmmakers hope to avoid having to use such support. They find it best to first seek permission from copyright owners before moving forward with the production of a film that incorporates copyrighted material (such as an advertisement or commercial).
Under fair use
The U.S. Copyright Office states that freedom of expression is permitted. And the use of unlicensed copyright-protected works can, in certain circumstances, be used in that expression without seeking permission from the copyright owner.
The types of works that generally are protected under fair use include documentary works as well as those which offer criticism, commentary, news reporting, teaching, scholarship or research. Documentary filmmaking often falls under research.
Using Advertisements Under Fair Use
So, can you use advertisements for a documentary? Fair use basically states that the filmmaker can safely use copyrighted works, like advertisements, as part of their filmmaking. As long as the work that is used was used in a fair way according to the rule of reason.
This means that a judge will review all of the facts and circumstances governing your use of the advertisement. And, in doing so, they will generally be seeking to answer the following two questions regarding the documentary’s use of the advertisement:
- Did the unlicensed use “transform” the material that was copyrighted? And use it in an entirely different way? For an entirely different purpose than the original work? Or was it just a repeated work of the original?
- Was the amount of the copyrighted work and that nature of the material that was taken appropriate in regard to the use of the work?
Of course, other questions and decision making will come up for a judge if you were to be sued for Copyright infringement after using an advertisement in a documentary. But these are the primary concerns that arise when seeking to determine fair use.
Documentary filmmakers can typically use advertisements and other copyrighted works, and are protected under fair use laws.
Provided they are using the works for the purpose of shedding light on an entirely new subject, educating the audience, and using the works in an entirely different context than what they were originally produced for.
If an advertisement represents a distinct work that adds value to your documentary, it is best to first seek permission from the copyright owner.
But if you struggle with that process, talking with a Copyright attorney about fair use is the next step before you opt to use the content in your film.