Fair Use & Intellectual Property Rights for a Film Documentary  

When it comes to documentary filmmaking, budget concerns are a leading cause for the filmmaker to shift focus from taking all legally necessary steps to obtain permission to use intellectual property to employing “fair use” best practices. While fair use policies do constitute the right for a documentary filmmaker to employ the use of various forms of intellectual property and copyrighted materials. The actual process of coming to the conclusion that the intellectual property involved was in fact used under “fair use” policies can be challenging and time consuming. Thus, understanding fair use and intellectual property rights for a film documentary is certainly something that independent filmmakers must be aware of.

In fact, filmmakers often mistakenly spend time and resources acquiring the licensing for various copyrighted materials and other intellectual property when they have the right to use the works under fair use.

Knowledge is power in this industry. And learning how and when it’s considered fair use to use intellectual property in your documentary filmmaking can alleviate some of the burdens and expenses.

Associated with otherwise seeking rights clearances to use intellectual property for a film.

What is Fair Use?

There is no single definition of fair use. In fact, only a judge can decide whether you have used intellectual property under what constitutes fair use.

However, the 2nd Circuit Court defines fair use as the privilege of filmmakers that are non-copyright owners to use copyrighted materials without the owner’s consent in a reasonable way.

A judge will generally further use a four-part test to determine fair use based on:

• Purpose and character of the use.
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• Nature of the copyrighted work.
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• Amount and substantiality of the work used.
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• Effect of use on the potential market.

Transformative

When a documentary filmmaker is going to state the fair use claim. They must have used the work in a way that is transformative in nature. And that does not impede on the original work.

For example, if you’re producing a documentary, you’re not going to use copyrighted material in such a way that you are directly reusing it in the same manner that it was originally created.

There must be a reason for your use of the work, and it must be transformative in nature such that it is distinctly different from the original work.

Consider This

It’s also important that if you’re going to claim fair use of intellectual property you will only use the amount of the copyrighted work that is necessary for the purpose of the work.

For example, if you are going to use footage from another film, you should only use the amount of footage required to explain or otherwise educate your audience. You would not use ten minutes of footage if you could readily explain with just 30 seconds. This is very important!

Can I Employ Fair Use in ANY Documentary?

One of the key questions that documentary filmmakers have when it comes to the use of intellectual property rights for film documentary projects is whether fair use defense can be employed in any documentary project.

The reality is, most documentaries can employ fair use. As long as they have taken the time to properly research the material that they are using. And they follow the fair use best practices.

In fact, fair use is a widely accepted defense in the documentary film production business. More than half of all documentaries qualify for fair use in regards to using copyrighted material.

Documentarians who have never had a problem with copyrighted work in the past are likely to not have any problems in the future. Provided they are only using the copyrighted material in a way that is transformative, educational, and minimally required for the education of their audience. 

The Research

Studies show that 99% of documentary filmmakers have been able to apply for errors and omissions insurance. And have succeeded in using fair use as their representation. As to why they do not have copyright licenses for all intellectual property involved in their production.

Additionally, 95% of documentary filmmakers have not had a problem with a broadcaster distributing their film. Once they have claimed fair use. And have had a legal letter from their attorney provided to the distributor. To prove that their use of the work was done so fairly.

The overall message here is that if you’re wondering what your intellectual property rights for a film documentary project are. Your best bet is to work closely with an entertainment attorney.

To ensure that you have followed all appropriate fair use best practices in using copyrighted works in your film production. This way, should you have any lawsuit or other legal premises brought forth? You will have the protection of your attorney already in place.

Legal Proof

Further, since few documentary filmmakers have ever had any major issues arise out of the use of intellectual property. When they have proof from an attorney that they have done so in fair use.

Your working closely with an attorney is like your ticket to avoiding any further legal battles for fair use misrepresentation. You’ve got a 99% chance that you will get insurance coverage with an attorney’s letter proving fair use.

And you’ve got a 95% chance that you’ll get your distribution deal to go throughout with that same letter. So it pays to have the proof from a legal source.

The Downside to Fair Use and Intellectual Property Rights for a Film Documentary

Unfortunately, fair use is a rightful defense should a copyright infringement claim be made against you. This means that in order for you to state you used the copyrighted intellectual property in fair use.

You must first be accused in a court of law, of having used the work in a way that infringes upon the copyright. Therefore, fair use is a defense that would require you to have an attorney that stakes the claim in court.

Thus, intellectual property rights for a film documentary provide filmmakers with the rights to incorporate copyrighted material into their filmmaking under fair use protections.

But doing so requires the support of an entertainment attorney. Keep this in mind before you bring forth any lawsuit for fair use or otherwise. 

In Summary

As you can see, protections of fair use for intellectual property rights for a film documentary are plentiful and they tend to provide the level of coverage required for these filmmakers to have access to the copyrighted material they need to continue creating and educating audiences.

Not sure if you qualify for fair use? Your best bet is to work closely with an entertainment attorney that understands this fully. So that you have the resources required throughout the process. To ensure you’re taking all the right precautions throughout the production process.