Last weekend, I participated in a discussion on the top ten legal mistakes of filmmakers (and how to avoid them) at CBS Radio’s Michigan Makes Movies Expo. The event, and the lecture, were both well attended.
One mistake that made our top ten list had to do with misconceptions about the Fair Use Doctrine in copyright law. Here’s some of what was discussed:
Background. Fair use is a doctrine in United States copyright law, incorporated in Section 107 of the Copyright Act, which allows limited use of copyrighted material without requiring permission from the copyright owner, such as use for scholarship or review or criticism or parody or news reporting (to name a few). In determining whether or not the use of copyrighted material without permission is a fair use, courts consider a four-factor balancing test: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes (in the last fifteen years, a key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative); (2) the nature of the copyrighted work, such as whether it is fictional or non-fictional; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (in general, the less that is used in relation to the whole); and (4) the effect of the use upon the potential market for or value of the copyrighted work. What could be simpler? The truth is that fair use is notoriously complicated and unpredictable.
The Common Mistake(s). There are really two: filmmakers either (1) rely too much on fair use as a defense, when other options may be available, or (2) they fail to exercise their fair use rights at all, even when the use may fall squarely within fair use guidelines or would not otherwise be a copyright violation in the absence of a fair use defense.
How to Avoid these Mistakes. Overall, filmmakers should have a basic understanding of the fair use doctrine. To this end, I would recommend the “Documentary Filmmakers’ Statement of Best Practices in Fair Use” and the “Code of Best Practices in Fair Use for Online Video” as a starting place. However, whenever you intend to use a copyrighted work, without the permission of the copyright holder, you should consult with a copyright attorney to help you assess a potential fair use claim and the risks involved in doing so. Specifically, though…
As for the first mistake (relying too much on fair use), remember that fair use is a defense not a force field. It can’t keep you from getting sued. It will only give you and your lawyer a defense when you get sued. So, don’t rely on fair use when a license can otherwise be affordably obtained. When a license cannot be obtained, for whatever reason, consider using alternative material that can be obtained with a license. This won’t always work, of course, but the lesson here is to explore all of your options before going to a fair use defense.
As for the second mistake (not relying on fair use at all), remember that fair use is a defense but it is also a right, rooted in the First Amendment, and despite its notorious reputation there are some uses that are generally agreed to be fair uses. In these cases, don’t be afraid to exercise your fair use rights…otherwise, someday, you might lose them.
Finally, filmmakers should understand that any unlicensed use of copyrighted materials in their productions involves some risk — even where a fair use defense is available. To mitigate this risk, filmmakers should purchase Errors & Omissions Insurance (otherwise known as E&O Insurance), and they should purchase it early so coverage begins during pre-production. If you wait until production to purchase your E&O policy, and a claim is made, the insurance company may decline to issue a policy or insist that the policy exclude the pre-existing claim.
–Matt
