BEST PRACTICES IN FAIR USE

For download:
STATEMENT - The whole text

Initiators:
www.documentaristi.it
www.edn.dk
 

 
The idea was launched in Toronto during a discussion with Diane Estelle Vicari and Sandra Rouch from IDA, and immediately found the support of all the associations involved in this movement including representatives from the Film Board of Canada. The need to find a solution for quoting other people’s work in documentary film making has been around for quite some time, and discussions have been developed in many countries, but recently in the USA the main docs associations agreed on a basic concept and produced the statement (Best Practice in Fair Use) you will find here to download.

The next step will be to have a first public conference in Rome, October 19th, held by Doc/It and EDN, where both organizations hope to announce their determination as filmmaker associations to follow the Best Practice on Fair Use in Europe.

ABSTRACT:

This Statement of Best Practices in Fair Use makes clear what documentary filmmakers currently regard as reasonable application of the copyright “fair use” doctrine. Fair use expresses the core value of free expression within copyright law. The statement clarifies this crucial legal doctrine, to help filmmakers use it with confidence. The statement is informed both by experience and ethical principles. It also draws on analogy: documentary filmmakers should have the same kind of access to copyrighted materials that is enjoyed by cultural and historical critics who work in print media and by news broadcasters. Fair use is a feature in the copyright law that permits quotations from copyrighted works to be made without permission, under certain conditions. Creators benefit from the fact that the copyright law does not specify how to apply fair use. In assessing what is “fair use”, lawyers and judges focus on two key questions:

1/ Did the unlicensed use transform the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original?

2/ Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?

This statement is organized around four classes of the most common kinds of situations that documentary filmmakers confront regularly in practice:

1. Employing copyrighted material as the object of social, political, or cultural critique
   - Documentarians hold the specific copyrighted work up for critical analysis;
   - In order to qualify as fair use, the use may be as extensive as is necessary to make the point, permitting the viewer to fully grasp the criticism or analysis;
   - The use should not be so extensive that it ceases to function as critique and becomes, instead, a way of satisfying the audience's taste for the thing critiqued (a market substitute).
2. Quoting copyrighted works of popular culture to illustrate an argument or point
   - The material aptly illustrates some argument that a filmmaker is developing;
   - The filmmaker is not presenting the quoted material for its original purpose but harnessing it for a new one;
   - Fair use in these cases means that the material is properly attributed; quotations are taken from a range of different sources; each quotation has an appropriate length; the quoted material cannot be replaced by shooting equivalent footage.    
3. Capturing copyrighted media content in the process of filming something else
   - Copyrighted sounds and images while filming sequences in real-life settings;
   - Fair use should protect documentary filmmakers from being forced to falsify reality;
   - In fair use, the media content featured in a scene being filmed was not requested or directed; it is integral to the scene; it is properly attributed; it is not the main focus of interest; in the case of music, it does not function as a substitute for a synch track.
4. Using copyrighted material in a historical sequence
   - The material is used to tell a historical story or make a historical point;
   - Fair use should ensure the social and educational importance of the documentary medium;
   - In fair use, the material featured in the film is not the main focus of interest; it serves a critical illustrative function, and no suitable substitute exists; it cannot be licensed, or it can be licensed only on unreasonable terms; it is used only to make the point for which the material has been selected; it is not the predominant source; it is properly attributed.