What Qualifies as Fair Use of Archival Video in a Documentary?
As a documentary filmmaker, you might be wondering if archival footage can be used in your documentaries and if so, what the process is. The use of archived video footage, or stock footage, generally doesn’t require the same licensing that you would need from copyrighted material, but does this mean that you can use any archival video in your documentary without seeking permission? What qualifies as fair use of archival video in a documentary film?
Beverly Boy Productions handles full-service documentary video production, and footage clearance is part of that process from day one.
What is Archival Video?
Archival footage, or archival video, represents a unique form of stock footage that is generally not under copyright or has protection. This is footage that you will find archived in a library or similar sort of storage and which is available for free and open use.
Generally speaking, archival video does not require payment of any licensing fees in order for you to gain access. It helps to understand how this differs from stock footage in film, which is often licensed rather than freely available.
Other Types
Archival video isn’t just old, historical footage, though. Archival footage may include things like old newscasts, past government footage from NASA. Or from other areas of government such as the U.S. Department of Transportation.
It could include just about anything you can imagine! But the point of archival video is that it’s available in the archive. In store for free use for anyone generally interested in using it.
Fair Use of Archival Video in a Documentary
Since archival video is generally not copyrighted, there would be no rules on fair use of the material. Whether you were to use it in a documentary or any other form of film.
However, should you wish to use copyrighted material the creation of documentary film does have slightly different rules and fair use policies vary. Things such as material not included as archival video. Or material that was previously under copyright to your knowledge.
Copyrighted Material
When producing a documentary film, even the use of copyrighted material is generally acceptable under fair use.
Essentially fair use protection states that it’s acceptable to use copyright works if for an entirely different purpose. As well as to educate the viewer such as a documentary would do.
However, if you’re thinking about using copyrighted material under fair use for your documentary filmmaking needs, it is always best to consult with an attorney first. For a deeper look at how usage rights work, see our guide to film copyright licensing.
U.S Copyright
Fair use protection, when using any form of copyrighted material in a documentary, is a protection that a U.S. Copyright attorney would bring up in a court after you have already been sued for copyright infringement, not before.
This is because fair use is a protection to a copyright infringement lawsuit, and does not provide proactive protection against being sued in the first place.
Therefore, we recommend that prior to using any footage in your documentary, whether archival video, or copyrighted material, that you seek appropriate steps to ensure you’re getting permission from the correct owners of the footage if and when such permission is required.
The Four Factors of Fair Use
When copyrighted footage is not considered open-use archival material, documentary filmmakers may look at fair use as a possible option. Fair use is usually judged by four main factors:
- Purpose and character of the use – Whether the footage is being used for education, commentary, criticism, news reporting, or historical context, and whether the use is transformative.
- Nature of the original work – Whether the source footage is more factual, like news or government-related footage, or more creative, like films, TV shows, or commercials.
- Amount of footage used – How much of the original clip is used and whether the documentary only uses what is necessary to make its point.
- Effect on the market – Whether the use could replace the original footage or reduce its licensing value for the copyright owner.
For example, using a short news clip to explain how an event was reported may be more defensible than using the same clip just to make a scene feel more dramatic. Even then, fair use is not automatic protection. As mentioned in the blog, it is best to consult an attorney before relying on fair use, especially because fair use is often used as a defense after a copyright claim has already been made. For a plain-language breakdown, Stanford Libraries maintains an authoritative Copyright & Fair Use index.
Archival vs. Public Domain vs. Licensed Footage
It is important to understand that “archival” does not always mean “free.” Archival footage simply means older or stored footage that comes from an archive, library, database, agency, or collection. Some archival footage may be public domain, such as certain U.S. federal government materials from sources like NASA, NARA, or other federal agencies. In those cases, copyright permission may not be required.
However, some archival footage is still copyrighted or privately owned. Old news broadcasts, television clips, movie scenes, commercials, and private collections may require permission or licensing. Other footage may be available through paid stock houses or archive libraries, where the filmmaker pays for specific usage rights. Before using any clip, documentary filmmakers should confirm whether it is public domain, licensed, or still protected by copyright.
- Archival footage – Older or stored video footage from an archive, collection, library, news source, or database. However, “archival” does not automatically mean it is free to use.
- Public domain footage – Footage that is not protected by copyright or whose copyright has expired. This may include some U.S. federal government materials, such as certain NASA or NARA footage.
- Licensed footage – Footage that requires permission or payment to use. This is usually obtained from stock footage websites, news agencies, private archives, or rights holders under specific usage terms.
Where to Find Truly Free Archival Footage
Documentary filmmakers looking for free archival footage should start with trusted sources that clearly explain usage rights. Useful places to search include the National Archives and Records Administration, the Library of Congress, the Prelinger Archives, and the Internet Archive. These collections often include historical films, government footage, educational films, old public service videos, and other materials that may work well in a documentary.
Still, filmmakers should review the rights information for each clip carefully. Just because footage is available online or stored in an archive does not always mean it is free for commercial use. The safest approach is to save the source link, check the rights statement, note any required credit, and confirm whether there are restrictions before adding the footage to the final edit. Filmmakers can also explore our roundup of the top public domain video repositories for genuinely free, clearance-friendly sources. Much U.S. government footage is public domain and available through the National Archives motion picture collection.
Best Practices for Documentary Filmmakers
The best approach is to handle archival footage early in the production process. Before the final edit, filmmakers should identify which clips are needed, where they came from, and whether they require permission, licensing, or a fair use review. Keeping a footage log can help track source links, rights status, licensing terms, credit requirements, and any notes from the archive or rights holder.
For projects intended for broadcast, streaming, festivals, or commercial distribution, it is also smart to speak with an attorney and consider Errors and Omissions insurance. As the blog explains, fair use does not prevent someone from filing a copyright claim, so documentation matters. A clear clearance process helps protect the documentary and keeps the production ready for delivery. Before you lock your edit, work through a legal clearances checklist and review the rules around rights and clearances for film and television productions.
In Summary
What qualifies as fair use of archival video in a documentary? Technically, archival video is open source and does not require permission as it is not protected by copyright.
Therefore, there would be no need to use fair use protection. Because the original content owner would not have a copyright infringement case. But speak with an attorney to be sure!
FREQUENTLY ASKED QUESTIONS
Does archival footage require permission to use in a documentary?
It depends. Archival footage that is in the public domain, such as most U.S. federal government footage or works whose copyright has expired, can be used freely. However, “archival” does not automatically mean “free.” Much footage held in archives is still under copyright or requires a license from a stock house, so always verify the rights status of each clip before using it.
What is the difference between fair use and public domain?
Public-domain footage is not protected by copyright at all, so anyone can use it without permission. Fair use is a legal defense that allows limited use of still-copyrighted material for purposes such as commentary, criticism, education, or news reporting, judged by a four-factor test. In short, public domain means no permission is needed, while fair use is a defense you raise if you are challenged for using copyrighted material.
What are the four factors of fair use?
Courts weigh four factors: (1) the purpose and character of the use, including whether it is transformative or commercial; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the market for the original work. No single factor is decisive; courts weigh them together.
Where can documentary filmmakers find free archival footage?
Reliable sources of public-domain or freely usable footage include the U.S. National Archives, the Library of Congress, the Prelinger Archives on the Internet Archive, and NASA’s media library. Always confirm the specific license or rights status of each clip, because not everything in these collections is unrestricted.
Is fair use a guarantee against being sued?
No. Fair use is a defense raised after a copyright infringement claim, not proactive protection against being sued. Because outcomes depend on the specific facts, documentary filmmakers should clear footage in advance where possible and consult an entertainment or copyright attorney before relying on fair use.
Planning a documentary that uses archival footage? Request a video production quote and our team will help you handle the footage clearance side correctly.
Forbes Business Council Member | 24+ Years in Film & Video Production
