Important Copyright Law for Documentary Films
Throughout the course of a documentary filmmaker’s career they are bound to face various challenges, particularly those that apply to copyright law for documentary films. Whether it’s fair use representations. Or the need to license footage or files that are to be incorporated into a documentary. These filmmakers are consistently facing new challenges in acquiring and using footage, files. Or other previously licensed material in their documentary films. Understanding copyright law for documentary films is a vital part of the production process.
Fair Use & Copyright Law for Documentary Films
One of the greatest representations of Copyright law for documentary films is the “Fair Use” protection that many filmmakers subsequently employ. Under Fair Use, the United States Copyright Act Section 107 States:
“Fair use of a copyrighted work, including the reproduction in copies for the purpose of criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright.”
Therefore, documentary filmmakers that reuse or otherwise reproduce works for the purpose of a documentary film. They are not bound by the rules of typical copyright protection.
And may therefore use previously copyrighted material. Without facing legal challenges for copyright infringement. If you’re trying to decide if under copyright law for documentary films you have in fact used works under “fair use”.
You’ll have to employ the two question test as follows:
- Did my unlicensed use of the copyrighted material “transform” the work by using it for a completely different purpose from which the original work was intended for use?
- Was the amount of copyrighted material that I used and the nature of the use appropriate?
Accusations
As long as you can answer yes to these two questions. You will most likely have yourself a protection of fair use. However, it’s important to keep in mind that fair use is a protection.
It does not prevent the accusations of copyright infringement. Nor will it prevent you from potentially file a response to a lawsuit should one be brought forth.
Copyright Law When Incidental Footage is Captured
Sometimes, during the course of producing a documentary film, there is a risk that the filmmaker will capture incidental footage during the course of their production.
For example, if the filmmaker is filming a story. In which a group of kids are watching various television shows. And then reenacting them as part of a learning experience (this took place for The Wolfpack A documentary about homeschooled brothers).
If the film footage includes footage of copyrighted movies in the background, incidentally, there could be fair use protections. To be sure that the footage was purely incidental and that copyright law was not violated.
The filmmaker should ask themselves the following questions:
- Was the footage that was played on the television requested? Or directed as part of the documentary? (the answer should be NO)
- Was the footage that was incidentally captured integral to the film’s message? (the answer should be YES)
- Was the content properly attributed? (it should be!)
- Was the scene with the incidental footage used for the purpose of exploiting the other copyrighted material? (this should be a firm NO)
How Errors & Omissions Insurance Can Help
Documentary filmmakers can face a number of complex legal challenges when it comes to their use of various copyrighted materials in the works that they create.
But if it were not for the materials they may not be able to produce the documentary at all. Thus, even a filmmaker that does their very best to be thorough with their research.
And to ensure they’ve sought permission where needed. In order to use footage or files in their documentary filmmaking. Things can be overlooked or mistakes can happen.
Litigation Protection
That’s where errors and omissions insurance comes in. Documentary filmmakers can acquire errors and omissions coverage to help protect them should certain copyright infringement litigations come up.
With Errors and Omissions Insurance (E&O Insurance), the documentary filmmaker can obtain legal protections. In the event that a case for copyright infringement is brought forth against them.
Monetary Awards
Particularly, E&O Insurance provides not only for legal protection. But will pay out any claims should a monetary award be provided to the other party in a copyright infringement case.
However, this is not a free ticket for a documentarian to stop being diligent in his or her handling of production. The filmmaker must prove that they were diligent in their effort to secure proper licensing.
And/or that they have used copyrighted works under “fair use” protection in order for their E&O Insurance to kick in.
Chain of Title
In fact, before E&O Insurance coverage can be obtained. It’s likely that the filmmaker will be asked to provide a clean chain of title proving their diligence in acquiring rights to copyrighted works.
Or showing that they have used copyrighted material only as is allowed under U.S. Copyright law. So before you go thinking that you can just use your E&O insurance as a backbone for being lazy with your research? Think again!
Attribution can Help
In any case, when using copyright material, it’s important for filmmakers to follow important copyright law for documentary films. Attribution is key here.
Even if the filmmaker is unable to acquire the rights to copyrighted material. If they are willing to provide attribution to the original work.
And make an effort to include the details of the original author or other elements in the film’s credits. Then they may reduce the risk of any copyright infringement cases being brought forth against them.
Crediting Original Work
Anytime copyrighted material is used in a documentary. Whether it’s quoting a previously published article. Or including a clip from a prior film, attributing the original work is important.
This is even a key area of importance for filmmakers that use creative commons material or material that the public domain includes.
Properly attributing your work, and not merely claiming it as your own, will show that you’ve done your diligence in making your viewers aware that the works contained within your documentary are a compilation of others and may not all be owned by you.
The Takeaway
Fair Use Copyright law for documentary films will almost certainly come up in a variety of situations. As a filmmaker, if you’re wondering whether your use of copyrighted works in your documentaries is justifiable.
It is important for you to consider how you’re using the content. And, to prevent a potential copyright infringement case, you should always seek permission ahead of time.
However, in the event that you cannot afford to pay for rights, or when you know you’re using footage under fair use protections. Knowing how the various copyright laws for documentary films work is important. And could save you time, money, and a lot of headaches in the long run.
