Top 5 Considerations Under Fair Use Laws for Filmmakers
Fair use is a common protection brought up in Civil Court following the filing of a copyright infringement lawsuit against a filmmaker or documentarian. Fair use laws for filmmakers offer a protection against legal issues related to the use of copyrighted material without a license or payment for such use. As a documentary filmmaker, it’s important for you to understand what fair use means to you and your film project.
What are Fair Use Laws for Filmmakers?
Technically speaking, fair use is not a law. It’s a defense that is brought forth in court to protect a filmmaker utilizing copywritten material. Things like music, previously filmed footage, or other literary content without obtaining proper permissions from the copyright owner.
Fair use protects an artist’s creativity, and provides power to use pre existing material in a documentary without facing significant legal challenges for copyright infringement.
Now that you’re fully aware of fair use laws for filmmakers and what this particular defense means. Let’s take a look at the top 5 considerations that filmmakers should prepare for if they intend to bring a fair use defense.
1. Fair Use is a Defense – NOT a Law!
First and foremost, you must understand that fair use is a defense – NOT a law. Fair use provides protection for the filmmaker in the event that a lawsuit is filed against them for copyright infringement.
However, before this defense can be brought up in court, you must first have a lawsuit filed against you. Therefore, we can say that fair use is not proactive.
Be proactive and hopefully prevent yourself from having to bring forth any potential fair use protection. Consider seeking permission to use any copyrighted material, even if you’re producing a documentary film.
2. Fair Use it Determined on a Case-by-Case Basis!
Because fair use is not technically a law. Rather, it’s a defense that can be brought forth by your attorney. It is determined on a case-by-case basis.
This means that the US Supreme Court requires all facts to be equally considered in a copyright infringement case before any final judgement for any party can be awarded. Courts will individually decide if a fair use defense applies to a copyright infringement case.
3. Fair Use Defense is Best Supported by Clear Points
Before you even consider fair use defense against a copyright infringement claim you must make sure that you have been proactive in your filmmaking.
And that the use of copyrighted material in your film was part of your illustration of a point that is clearly represented by the material included in the film.
You must have a good purpose for having used copyrighted material in your film. Especially when you haven’t got permission!
4. Section 107 Guides a Judge on Fair Use – it is NOT Binding!
Remember what we said about deciding fair use on a case-by-case basis? It’s also important for you to know that fair use laws for filmmakers, which are outlined in Section 107, provides purely a guide for judges.
Upon which they can decide whether or not a fair use protection might be enacted. The text does not bind the judge to a particular decision for, or against, the defendant. Individual circumstances are considered with each case.
5. Fair Use is Incredibly Vague
If you’re hoping to understand fair use laws for filmmakers, you’re probably going to find yourself banging your head. This is because the law codifying fair use was purposely designed for flexibility and to provide broad representation.
Upon which judges could use their own judgement tailored specifically to contexts in which it is brought forth. For this purpose, we highly recommend you speak with an entertainment business attorney.
It’s best to do this prior to the use of any copyrighted material in a film or broadcast.
While even the attorney will not be able to tell you for sure whether fair use protection is guaranteed to serve you if litigation is filed against you, it’s a great starting point!
