Ask the Experts: Demystifying Fair Use
Online Dialogue

Whether you are a blogger, a photographer or a filmmaker, it is not always clear where your freedom to use content publicly might be legally questioned. When it comes to using copyrighted material, you have more rights than you think.

Whether you are a blogger, a photographer or a filmmaker, it is not always clear where your freedom to use content publicly might be legally questioned. When it comes to using copyrighted material, you have more rights than you think.

"Fair use is the right, in some circumstances, to quote copyrighted material without asking permission or paying for it. It is a crucial feature of copyright law and what keeps copyright from being censorship. You can invoke fair use when the value to the public of what you are saying outweighs the cost to the private owner of the copyright," according to the Center for Social Media site.

To help answer questions about fair use, OneWorld partnered with the Center for Social Media at American University to co-host an online dialogue with Patricia Aufderheide, Director of the Center for Social Media, and Maura Ugarte, Graduate Associate at the Center.

A wide aray of questions were submitted, and Pat and Maura answer them below.

o Introduction
o Expert Bios
o Featured Resources
o Questions & Answers
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Introduction

Thank you to everyone who contributed questions to this online dialogue. We'd also like to thank Peter Jaszi, law professor and co-director of the Program on Information Justice and Intellectual Property and co-facilitator of the Best Practices Statement, for helping us answer some of the questions.

We did our best to answer your questions and to provide additional resources where necessary. It's important to note that our answers cannot substitute for legal advice, and that we are not lawyers.

The Statement of Best Practices in Fair Use was created by documentary filmmakers as a statement of what their community deems as fair and reasonable application of the fair use doctrine. It was created to give filmmakers confidence and clear guidelines regarding fair use, but it does not constitute law.

That being said, it's also important to note when courts decide fair use cases, they consider the common practices of the professional communities where the case comes from. This Statement is a powerful statement of the field, since it is a collaborative, peer-created best practices document.

The Statement has provoked dramatic change in the industry since it was released in November 2005. PBS and ITVS have used the Statement to release programs, and so have cablecasters including IFC. Four of the seven national errors and omissions insurers now issue fair use coverage, if a lawyer says that the use is within the terms of the Statement. Click here for a complete list of recent adopters. As more gatekeepers endorse the statement, the stronger the statement becomes. Practice makes practice. Practice changes practice.

There were a few issues that kept coming up in the questions that we'd like to address here. First, it makes no difference in the law whether or not you are using other people's copyrighted material on behalf of a nonprofit. Fair use is just as viable within a commercial context as in a nonprofit context. Your organization must either rely on fair use or license the material, unless it is in the public domain.

Second, many people asked if there was a certain length or quantity they must not exceed when using copyrighted material. There is no set length described in the law--the Statement stipulates that a fair user must only use enough of the material to make their point, but no more.

Third, we realize that not everyone in this dialogue is interested in fair use from a documentary filmmaking perspective, but the guidelines described in the Statement can generally apply to other media-makers as well. We have described how in the answers to the questions.

Fair use is an extremely important aspect of copyright law that prevents our freedom of speech from being limited. If we do not invoke our fair use rights, fair use becomes weak. We hope that by providing more clarity, and a Statement that is endorsed by documentary filmmakers and distributors alike, you will feel confident and supported in your choices.

Thank you,
Pat Aufderheide & Maura Ugarte
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Questions & Answers

Fair Use, Licensing & E&O
1. Due Diligence & Creative Commons Licensing, Jennifer Gilomen
2. Viacom vs. Youtube, Digital Millennium Copyright Act & More, Molly
3. E&O Coverage, Anonymous

Audio & Music
4. Streaming Audio, Green Change
5. Using Music in Viral Marketing Clip, Sohini
6. Music Licenses for Podcasts, Francesca Rheannon
7. Podcasts vs. Broadcasts, Anonymous
8. Public Radio Documentary, Anonymous
9. Public Radio, Sean Cole
10. Incidental Music 1, Maital Guttman
11. Incidental Music 2, Reed

Video & Documentaries
12. Video Footage, Paul Hoffman
13. Reproducing Interviews, Gilbert Wilson
14. Music Video, Benjamin Watkins
15. Video Usage, Simone
16. Reusing News Coverage, Bronacos
17. Documentaries, Dave Gardner
18. Documentaries Using News Reports, Alex Zacarias
19. Documentary on Hollywood film, Tyler Schwartz
20. Parody, Darrell Hay

Images & Logos
21. Images, Alban
22. Logos 1, Anonymous
23. Logos 2, Animallogic

Text
24. Quotes and Time Frames for Publicly Available Content, ML
25. Quotation Limit, Kathleen L.

Privacy Issues
26. Street Filming, Hatef Yamini
27. Copyright Ownership of Interview Questions, Anonymous

Media Literacy Education
28. Media Literacy Resources, Denis Doyon
29. Media Copyrights for Classroom Use, Anonymous

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Fair Use, Licensing & E&O

1. Due Diligence & Creative Commons Licensing

Jennifer Gilomen: Thank you for offering this opportunity to the community. I am a documentary filmmaker and instructor based in San Francisco, CA. I work at the Bay Area Video Coalition (BAVC) where I have the opportunity to work with hundreds of nonprofit organizations and youth mediamakers to produce social justice media.

In all of the trainings I do, I include a discussion about the basics of copyright and Fair Use, and often refer to Creative Commons, the Internet Archive, Our Media, the Statement of Best Practices, and the plethora of other resources for beginning mediamakers to find and appropriately cite licensed and public domain work.

In my own documentary work, I have also used media with Creative Commons licenses. I am aware of the issues documentary filmmakers have faced regarding E&O Insurance and baseless litigation threats, and have followed discussions about fair use over the past four years with increasing interest as I develop my own documentary projects. My questions are as follows:

1) While Creative Commons licenses are one of the most revolutionary and freely available tools for mediamakers, I also know how easy they are to obtain. How can we as creators ensure that the person using the license actually has the rights to license the material? It would be easy, for example, to illegally download and publish materials from the Internet, and put a Creative Commons license on the material. It is very difficult to confirm what the true source of the material is. What is considered due diligence for discovering the primary source for the material, or the legitimacy of the license as selected by the offering user? Are you aware of any related law suits or issues?

2) When documentary filmmakers educate themselves about Fair Use, they are often surprised to find out what their rights actually are. However, when they go to obtain E&O Insurance, they have a second wave wake-up call. Is it true that the insurers and broadcasters are typically more conservative in the application of Fair Use? Because insurers are private companies, does that mean filmmakers have no recourse or alternatives? What can filmmakers do to right this problem to achieve true application of Fair Use?

3) One of the reasons filmmakers I know have shrunk from exerting their rights to fair use is because copyright holders send threatening letters. In many ways, I consider this to be harassment -- an intimidation tactic by corporations with a team of attorneys. Is there anything we can do as filmmakers to get these letters to stop? Do you think legislation is a solution? Is there a comparable case of intimidation in history? Or is it just a matter of ignoring the letters? Over time, these letters alone have had a deleterious effect on the independent film community.
Thank you so much.
Jennifer Gilomen, Documentary Filmmaker, Forward Films
Producer & Instructor, Bay Area Video Coalition

Pat & Maura: Regarding your first question, we are aware of no lawsuits concerning Creative Commons licenses. Although you weren’t referring to this problem, it’s important to note that a CC license from someone who is incorporating third party material gives no protection vis-a-vis that third party. If you are unsure about whether the material in a CC licensed piece was created by the licensor, you should ask the licensor. If that’s not possible, you either shouldn’t use the material or rely on fair use.

As to your second question, there’s great news! Four of the seven national insurers that issue errors and omissions insurance now accept fair use claims, and we expect the others to follow. AIG’s National Union, like Chubb and OneBeacon, requires only a lawyer’s letter, saying that the fair use was made in accords with the principles and limitations of the Documentary Filmmakers’ Statement of Best Practices in Fair Use. The best way to encourage insurers to accept fair use claims is to make fair use claims, so that they get practice ensuring them.

For your third question, we are told by our lawyer friends that judges in general do not like to see pre-emptive litigation such as would be necessary to call attention to this kind of bullying. Furthermore, in previous litigation, intimidating letters have been found to be acceptable speech. Therefore it is up to the recipient to act. So it is critically important that new creators understand these cease-and-desist letters as a bullying and scare tactic.

2. Viacom vs. Youtube, Digital Millennium Copyright Act & More

Molly: Thank you for this opportunity. I have a few general questions. Please see below.

How do think the Viacom vs. Youtube lawsuit will play out, and what effects do you think it will have on the future of digital media? Do you believe the DMCA provisions need modification?

Pat & Maura: We don’t know how the lawsuit will pan out. Several members of the litigants’ companies have suggested that the lawsuit is “negotiation by other tactics,” and that they expect the lawsuit to resolve into a settlement.

But maybe that’s just what they’re telling reporters. If the case does go to trial, the result will affect what people think is ok to do when quoting copyrighted material, so it is important.

The Digital Millennium Copyright Act currently exempts Internet Service Providers from copyright liability for works posted on their sites. This clause may well be reconsidered in future legislation. The exemption currently functions to permit a kind of “free zone” of experiment, at a time when people are still figuring out what to do with their new digital toys and tools. So it’s a good thing for people like us who want to see creativity be enabled.

Molly: What are the general rules concerning incidental use in a documentary? Is this covered by fair use?

Pat & Maura: This is well covered in the Documentary Filmmakers’ Statement of Best Practices in Fair Use, category three. Filmmakers in that document agreed that incidental use is usually fair use, but please do read BOTH the principles AND the limitations!

Molly: Distributors and insurers are reluctant to get involved with films that use copyrighted material and may need to employ a fair use defense. How can a filmmaker overcome this? Are there alternatives to traditional distribution and E&O insurance?

Pat & Maura: Please note that these problems have been dramatically alleviated by changes in industry practice as a result of the publication of the Documentary Filmmakers’ Statement. Broadcasters, cablecasters and insurers now accept fair use claims, if they accord with the Documentary Filmmakers’ Statement. (Not everyone knows about it yet though, so make sure you let your gatekeepers know about the rapid acceptance of the Statement.)

Molly: What is the best approach for a filmmaker to take when she plans to employ a fair use claim for the use of copyrighted material? Is it best for her to ask permission of or alert the copyright holder of the use beforehand to avoid a lawsuit? And alternatively, how does an independent artist protect herself from infringement, especially on the Internet?

Pat & Maura: You do not have to ask permission or alert the copyright holder when employing fair use. If you are confident that your fair use claims will hold, bolstered by the Documentary Filmmaker’s Statement, then assert your rights! However, in some cases, courts have found that asking permission and then being rejected has actually created a case for fair use. So asking permission doesn’t mean that you necessarily give up the right to use fair use if you are denied.

There is no perfect answer to your second question, if what you mean is how do you ensure that people who find your work in a digital format on the Internet do not simply take your work without paying for it when they should. Creating a clear way for people to get in touch with you will help the great majority of people who want to do the right thing. If you want merely to share your work, or to share it with some restrictions, you can use Creative Commons licenses, which provide a way for you to share your work noncommercially while still getting credit. However, a CC license won’t do anything to keep infringers from infringing.

Molly: What resources and organizations can a filmmaker turn to for help when she is pursuing a fair use claim and is not able to hire a lawyer?

Pat & Maura: If you want to use fair use and the Statement’s terms apply, you do not need a lawyer. You can answer these questions for yourself with the help of the Statement, and no lawyer will be more authoritative than you are. (If you then want to distribute it or show it on TV and the gatekeeper requires fair use, you probably need to get a lawyer to write a letter for you.)

If you want to see a lawyer on a pro-bono basis, you can check with local free legal services, including your local Lawyers for the Arts organizations. Many of these lawyers, however, are inexperienced and many will not yet know about the Statement. So bring it with you and explain it to them. Another alternative is to consult one of the law school-based clinics around the country that specialize in intellectual property and information law issues.

3. E&O coverage

Dave Gardner: Is it safe to assume an insurer providing E&O coverage will be fairly timid about fair use, even if the "best practices" standards are met?

Meaning they will either decline coverage or ask for an unreasonable premium? Is it possible to distribute a film successfully without E&O? Obviously cable and broadcast would be out, but what about festivals, four-walling at theaters, etc.?

Pat & Maura: Refer to question 1 noting that it is now widely possible to get E&O for fair use. You are correct that in many venues, E&O is not required. Without such insurance, of course you will carry the risk from any lawsuit about anything. In the fair use arena, lawsuits are extremely infrequent—only nine have been decided over the last decade, and every one of them was resolved using the approach that documentary filmmakers eventually set forward in the Statement.
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Audio & Music

4. Streaming Audio

Green Change: I am interested in streaming audio on my organization's website. More specifically, we want to stream a song on each of our issue pages. We want to find songs that reflect our positions on issues. What kind of music can we stream? We are a tax exempt 527 organization.

Pat & Maura: The Supreme Court generally considers three things when deciding whether a use of someone else’s copyrighted material is fair or not. These include whether the use is transformative, i.e. whether the use changed the context of the original material or not, whether the use has an effect or could have an effect on the copyright holder’s ability to accrue a profit, and whether or not the length or quantity of the use is appropriate or gratuitous.

In this case, because it sounds like the use may not be transformative, since it is simply underscoring a particular viewpoint rather than recontextualizing it -- and because you wish to use the entire song, the filmmakers who designed the principles and limitations for the Documentary Filmmakers’ Statement wouldn’t view this use as fair.

The fact that you are a non-profit doesn’t make a critical difference, although the fact that your use is non-commercial (if that’s the case) might help, at the margin. Non-profits aren’t always non-commercial – what matters is whether you are selling product or not.

You would want to read the Documentary Filmmakers’ Statement for the principles and limitations that guided documentarians’ thinking, for some help in making your decision. If you believe that the use is not fair, then your choices are to compose or commission new music, to license the song, or to find a Creative Commons-licensed song or one in the public domain that could fit well with your website.

Please refer to the “Yes You Can” document to find out what is in the public domain; you can also find songs under creative commons licenses at creativecommons.org. Just be sure to comply with the license before uploading the song to your site—usually, this compliance is in the form of attribution.

5. Using Music in Viral Marketing Clip

Sohini: We're on a really tight budget but would like to use 30 - 45 seconds of a piece of music for our viral marketing clip. The artist is still alive and her music is owned by one of the major music corporations. Does fair use apply here at all? What are the rules? Do we need to get clearance? We're hoping that the clip will drive traffic to our site as well as get people to contribute financially.

Pat & Maura: Please refer to the answer to question 4. Fair use is all about context, and each use is judged on a case-by-case basis. So everything rides on why you want to use that music.

6. Music Licenses for Podcasts

Francesca Rheannon: I produce a weekly talk show on a local community/university radio station. I also podcast the show on the show's website. The station pays rights to air music, but obviously I, as an individual, do not. Typically, I don't have more than 5-30 seconds (60 seconds maximum) of any music. I use it for theme music and bridges between program segments. Do I have to strip the music out of the podcast, or can I use it because it is a rebroadcast of show from a station that pays rights?

Pat & Maura: Blanket music licenses are outside of our area of expertise. However we did a little research and discovered that as a part of some blanket licenses radio stations buy, many stations also opt in for podcasting. According to BMI’s website, if your station opted in for this feature, it doesn’t matter whether the stream is live or archived on the station’s site. Ask your licensor to see what your radio station is able to do. Either way, it appears for this license to be covered, it must be played or downloaded from the station’s site, not an individual’s site.

7. Podcasts vs. Broadcasts

Rich Meitin: Here's the trickiest question: Since radio stations pay ASCAP and BMI blanket licenses, basically any type of music use - full songs, whatever - is legitimate for the actual broadcast. BUT - the ASCAP and BMI licenses do NOT apply to streaming or downloaded podcasts. QUESTION: What rules DO apply? Are different stations/networks negotiating podcast music use, or getting supplemental licenses? Is everyone assuming SOME Fair Use is legit? If so, WHEN? Please distinguish between the Fair Use for reviewing music, etc. and whatever Fair Use may apply when using music for underscoring, theme and bumpers etc (if there IS any such Fair Use in podcasts). It seems to me there's a LOT of fudging of the Fair Use in podcasting (which I'm thankful for, since I love to use music cues). But I just can't tell where the hell anyone is getting their guidance from. I hear all kinds of "rules of thumb" but none of them is consistent! Please help.

Pat & Maura: Please refer to question 6. Some blanket music licenses cover podcasting. Ask your licensor to find out what is covered at your station. Otherwise, fair use can still apply. If you take a look at the guidelines outlined in the Documentary Filmmakers’ Statement of Best Practices in Fair Use, you’ll find clearly outlined explanations of what documentary filmmakers consider fair use. There are also several video examples here By using the guidelines in the Statement, we believe you can now decide what is fair based on the principles and guidelines of your peers.

8. Public Radio Documentary

Anonymous: Just completed an 8-hour public radio doc that is full of music and movie clips, which we believe (and hope) are covered under fair use? CPB pays yearly fees to ASCAP, BMI and SESAC for composers and author's royalties for music played on public radio stations? Does fair use apply equally to 1) streaming, 2) podcasting and/or 3) CD sales? What, if any, are the rights differences?
One program uses 36 music clips and two film clips, clip length runs from :07 to 4:23 (one clip). One other clip is 1:04, the rest are typically 30 sec. Average length is 35 sec. The use of these music and film clips are by any definition "transformative;" music is juxtaposed with, or voiceover discussion, history and commentary.

We've also used publicity photos of our guests and actors. They were either supplied by the talent, or licensed from Corbis, Photofest or the like. Any copyright issues? Do CRB Internet music royalties apply to this program? We're not doing a music that uses entire songs.
Our company is a 501c3 very not for profit. Does anyone know of a lawyer who really knows this field and will work pro bono (free or reduced rate) to advise us on specific uses. Thanks for doing this. A real public service. The bank account you save may be my own.

Pat & Maura: There are many issues here. First off, if all your uses are fair, than it shouldn’t matter whether CPB pays for blanket licensing or not—what’s fair is fair! Furthermore, fair use applies to the original broadcast of the documentary and to streaming, podcasting and CD sales. The total number of fair uses you made in your radio doc should make no difference. When documentary filmmakers outlined what they see as fair use of copyrighted material, they stated that the length of the use should continue only up to when the filmmaker’s point was made, but no further. Please refer to the Statement of Best Practices in Fair Use to get more information about what doc filmmakers consider fair use.

If the photos were licensed, just make sure you are complying with the license agreements or that you are relying on fair use. Note, too, that the terms of your license may restrict you from making uses that otherwise would be considered fair. If so, you should assume that the license terms “trump.” If you received the pictures from talent, you may want to have them sign a photo release form to cover all your bases. If you do a Google search for “likeness release form” you should find several examples.

Finally, it isn’t critical to the fair use analysis whether the use was made on behalf of a non-profit or not. As for lawyers, there are several pro-bono organizations that work with artists and non-profit media makers. Do a Google search for your local Lawyers for the Arts organization, but if you meet with someone, bring the Statement of Best Practices in Fair Use with you because a lot of lawyers don’t know about it.

9. Public Radio

Sean Cole: I'm a reporter for public radio. Is it "fair use" to use a short clip from a TV show or film in order to make a point in a given story, even if I'm not commenting directly on the clip? If so, what is the maximum amount of material I am allowed to use of a given TV show or film. My understand is that if 10% or less of the story is devoted to that material, it's "fair use." Is that true?

Pat & Maura: There is no “10 per cent rule,” unfortunately. The question always is: how and why are you using the material. According to the documentary filmmakers who created the statement, you must contextualize the clip somehow-- it can’t just be the original material without you clearly illustrating how it is relevant to the story. See the Statement of Best Practices in Fair Use for more clarity.

According to the law, there is no percentage that you are allowed to fair use. The Statement suggests that you can use the material long enough to make your point but no further. A while ago, broadcast networks wrote Standards and Practices manuals for news reporting that described percentages of copyrighted material that were fair to use for evening news. That was then, but the notion of a “ten percent rule” or a “30 second rule” is still very vivid. It has no force in law. The filmmakers’ Statement is tailored to the environment of documentary filmmaking and can be applied across genres, but nothing stops radio reporters from also creating standards documents that are appropriate to their practices.

10. Inidental Music 1

Maital Guttman: I filmed a peace rally in Israel where they played one Israeli song and John Lennon's Imagine during the rally...I captured reality there, and didn't ask them to play the song...can I count it as fair use? Also, I filmed a security guard outside of McDonald's, to show how there is security everywhere...must I clear the rights to show the McDonald's sign? Thanks!

Pat & Maura: Your fellow filmmakers have agreed that incidental music of any kind, captured in the process of documenting something else, is clearly fair use. They draw the line at using such captured material for soundtrack though! Please see the Statement of Best Practices in Fair Use and the fair use examples page, which clearly outline the difference under category 3. See the answer to question 22 for the sign issue.

11. Incidental Music 2

Reed: I have an interview, shot in a restaurant, and in the background you can hear a song playing over the restaurant music system. Do I need to clear this music, which you hear only intermittently? Thanks.

Pat & Maura: Please see answers to question 10 and question 22, and category 3 of the Statement of Best Practices in Fair Use.
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Video & Documentaries

12. Video Footage

Paul Hoffman: I filmed a famous baseball fan inside a major league baseball park entertaining the fans and did not film any part of the actual game being played. Major League Baseball has stated that they own all footage and photographs taken inside a ballpark even if the footage or photos do not show the game being played. Please advise what you think about their stance. Thank you.

Pat & Maura: It depends on how you are using the material. If you are fair using this footage, it doesn’t matter what MLB’s claims are. For guidelines on how to successfully invoke your fair use rights, see the Statement of Best Practices in Fair Use.

13. Reproducing Interviews

Gilbert Wilson: We're interested in reproducing the interviews our staff does with the media and CSPAN through video, audio, or transcripts. What are our fair use rights on this kind of material? What can and can't we do?

Pat & Maura: CSPAN does own the copyright to the audio and video what your staff said on their show. However, if you want to excerpt interviews in order to demonstrate a point about your staff’s knowledge and behavior, that is recontextualizing their material. Documentary filmmakers’ principles and limitations on this are in the Statement, and they include such considerations as providing commentary or evidence to support a point being made. Please read Statement before coming to your own conclusions about what is reasonable use of CSPAN’s material.

14. Music Video

Benjamin Watkins: I'm producing a documentary about Social Projects in Brazil. In one segment, I want to draw attention to imagery and ideas about Brazil that attract sex tourism. I want to show clips from popular music videos (e.g. Snoop Doggy Dog's "beautiful") to illustrate this. Can I use it?

Pat & Maura: Filmmakers agree that quoting from copyrighted work such as popular music videos in order to make a point or to illustrate a cultural trend or habit is appropriate fair use. Please see the Statement, and particularly category 1 and 2, and also look at the fair use examples page for more clarity. One of the limitations doc filmmakers stipulate is that you must make sure you are only using enough of the video to make your point, and no more.

15. Video Usage

Simone: We've been using several clips from Republican and Democratic conventions from various years in our educational non-profit political documentary. Quotes are illustrating points made by interview subjects. Maximum length is 38 seconds on one, others are shorter. We don't feel our documentary in any way diminishes the market for the footage. I know audio of these events is public domain, but is it fair use for the video? Do I need to site the networks it came from in the credits? Thanks.

Pat & Maura: The Statement of Best Practices in Fair Use may cover the uses you describe—please refer to the statement particularly category’s 1, 2 and 4 for more clarity. Be sure to read both the principles and the limitations of each category. As with many other things in life, politeness is a good thing; it is polite to cite your sources, and as you see from several of the limitations in the Statement, filmmakers think that it’s part of good fair use behavior.

16. Reusing News Coverage

Bronacos: In order to underline the importance a food safety issue, I'd like to highlight pertinent media coverage by posting tv news clips that cover the topic on our website. The source would have full credit and remain on our site only for 4-6 weeks - can this be done? Do I have to get permission from the tv stations?

Pat & Maura: Context is everything in fair use. If you are repeating news in order to spread the news, you are re-using material for the same purpose that it was originally designed for. The owners, and many filmmakers, would think that that is a use you should pay for, or license. The length of time it is up and the crediting wouldn’t mitigate the problem. However, if you link to the work, the problem goes away. If you recontextualize the news and “transform” its use—that is, have a different reason to quote it than it was originally made for—the filmmakers would think this could be fair use. (But please read the Statement of Best Practices in Fair Use to decide for yourself.) You don’t have to get permission as long as you are appropriately invoking fair use.

17. Documentaries

Dave Gardner: If a documentary relies heavily on fair use to include a wide variety of clips from newscasts, news stories in print and on the web, etc. and meets the best practices standards unequivocally, is there any danger in utilizing such clips in a promotional trailer for the documentary?

Pat & Maura: If you are recontextualizing the material, as described in the Statement of Best Practices in Fair Use, you should feel confident in your choice. See the Statement for more clarity.

Dave Gardner: If a documentary is commenting on the messaging of one or more corporations, would all of these qualify as fair use? Showing their print ads? Showing portions of videos the corp. prepared to show to limited audiences? Showing portions of TV spots? Portions of their web sites?

Pat & Maura: Filmmakers agree that quoting material of any kind, from music to ads to websites, can be fair use under certain circumstances. See the Statement of Best Practices in Fair Use and the fair use examples page for more clarity. In this sense, and many others, fair use decisions are not specific to particular use contexts.

18. Using News Reports in Documentaries

Alex Zacarias: I am producing a documentary about an incident where 3 youths were allegedly going to commit a Columbine-like event at there high school. Teachers and students interviewed comment that the first time they learned and found out more details about the incident was when they went home and saw the news reports. I want to incorporate these local tv news reports/footage for the documentary. What is fair use in incorporating news stories into ones documentaries? Thank you.

Pat & Maura: The Documentary Filmmakers’ Statement describes four general situations where fair use would apply: commenting on someone else’s material in order to critique it (category 1), illustrating cultural trends, practices (category 2) or a historical moment (category 4) , and capturing incidental material (category 3). You should look at categories 1, 2 and 4 to see what situations may apply to your work. Doc filmmakers also say, however, that it isn’t enough to use the clips in order to show the same information in the news clips; for fair use to apply according to the Statement, you would be including the news clips to show something about how they did it, e.g. this news rocked the community.

19. Documentary on Hollywood Film

Tyler Schwartz: I am filming a "True Hollywood Story"type documentary about a classic hollywood film. We visit the actual locations used in the movie, show how some of the scenes were filmed, and interview persons involved in creating the original movie. We do not use any actual video or audio from the film. We do frequently mention the name of the film and characters and scenes of the film. This video will be commercially sold on the Internet. Is it fair use?

Pat & Maura: This is not necessarily a fair use issue. If the locations are not locations that the original filmmakers created, like a set, for instance, there probably is no copyright issue. Likewise, there isn’t probably a copyright infringement issue describing how the filmmaker shot a particular sequence. Filming recreations of particular shots is a bit more problematic. Here, at least theoretically, the original copyright owner(s) might have a claim. The Statement of Best Practices in Fair Use will help you to understand whether, in that case, fair use should apply. It all depends, of course, on “context.” If the recreation is part of a historical/critical discussion, that should be OK if the length is appropriate. If it’s an “entertainment” use, that would be something else again.

20. Parody

Darrell Hay: Hi, I am doing a fiction satire/parody/mockumentary directed against the Churches in general. I have a couple of questions/issues that might fit under “employing copyrighted material as the object of social, political, or cultural critique”.

Can I use photos of “Church signs”(the ones that they use to advertise sermons) that I have photographed from the street?
Can I parody popular pastor names? Can I have a character named Billy Braham instead of say, Billy Graham?
Can I use photos of Church buildings taken from the sidewalk?
Can I use (just enough to prove a point) something like a “Far Side” Cartoon or a “Michaelangelo painting” if it mirrors a sentiment expressed in my film?

There are various organizations called “Nevada Alliance of Churches”, “Texas Alliance of Churches”, and “Maryland Alliance of Churches” etc. If I make up a state called Barbezon and make up an organization called “Barbezon Alliance of Churches”(to use in my satire), will I get in trouble? Thank You.

Pat & Maura: Parody and satire definitely come under the fair use guidelines. There probably are no copyrights in the simple messages on church signs. Moreover, you can freely use any images of buildings you’ve taken of a public place. You can parody names, signs, etc., as long as you aren’t slandering someone or being libelous. From what you’ve described, it isn’t clear whether the filmmakers who created the Statement would deem your use of a Far Side cartoon as fair. Please see the Statement of Best Practices in Fair Use to be clear. Generally speaking, using image or text simply to reinforce your own position may not qualify.
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Images & Logos

21. Images

Alban: For using images found on the internet (flickr etc.) for a documentary (90 min length about A Course In Miracles), in order to stay within fair use, how much of one author's images can I use as a background, or to illustrate what a narrator or someone interviewed says? Would using such an image even qualify as fair use, or do I have to seek clearance, because one can always argue, I should have been able to shoot that picture myself, even if it means to travel to far distances like to Europe or Asia? For using images from flickr or other similar pages, where there is not always a sure way of contacting the author of an image, how do I precede?

Let's say, I use 300 images all together, from various authors, maybe 50 or 100 photographers, if it is fair use, do I then mention every author in the end credits?

Do I have to state the source of the image, too, if the picture is in the public domain?

What about movie clips from famous movies, like "The Matrix" etc. If I use four 60 sec clips out of one movie, would that be within fair use?
Maybe my questions don't have simple straight forward answers with little information given. Anyway, thank you for your time. I appreciate it very much.

Pat & Maura: The doc filmmakers who wrote the Statement of Best Practices in Fair Use generally rejected the notion that fair use should amount to “B roll” uses. So we would need to know a little bit more about how you are using all these images. Whether fair use is applicable must be decided on a case-by-case basis, and in each case the question is how you are recontextualizing the material rather than just reusing it. There could be hundreds of images and all could be fair used (This Film Is Not Yet Rated has 134 fair used clips of Hollywood movies!) and on the other hand there might only be five images in another film, but they would all need to be cleared depending on the use. Read the Statement of Best Practices in Fair Use to see if your uses fit under the guidelines.

To find images that photographers have allowed others to use on a non-profit basis with attribution, do a Creative Commons search (creativecommons.org) Make sure to read what kind of Creative Commons license the authors have attached to images before you use them, and that you comply with that license.

If the image is in the public domain, you do not have to cite the work. However, make sure the image IS in the public domain; read "Yes, You Can! Where You Don't Even Need 'Fair Use' for more clarity.

22 . Logos 1

Anonymous: I'd like to do a spoof video about the Washington Post. Is it okay to use the Washington Post logo within the spoof video?

Pat & Maura: We would need to know more about how you are using the logo. It should be helpful for you to read the answer to question 20 and the Statement of Best Practices in Fair Use. Also read "Yes, You Can! Where You Don't Even Need 'Fair Use' for more on trademarks and to keep from needlessly pixeling out logos.

23 . Logos 2

Animallogic: I made a comedy do-it-yourself show online about people and their pets. It's like a Martha Stewart show for pet owners. I'd like to include social commentary on the billion-dollar pet industry, including naming major major brands like Iams and Science Diet, who recently sold pet food contaminated with industrial chemicals from China. Can I show brands and corporate logos in my show? I'd also like to show alternative brands. Do I need permission from these companies?

Pat & Maura: Documentary filmmakers agree that in terms of category 2 in the Statement, social commentary is covered under fair use. Please see the answer to question 22 for more clarity and the Statement of Best Practices in Fair Use. There are also several video examples on our website which include social commentary and fair used material.(fair use examples page).
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24. Quotes and Time Frames for Publicly Available Content

ML: Is there a rule of thumb for quoting previously published, publicly available, reports and news stories. Specifically, how much can you directly quote a publication before it becomes necessary to ask the authors permission? How does this differ for purchased materials (such as a research report from a think tank)?

For newspaper articles that were once publicly available online and in print, but are now only available online to publication subscribers (for instance the New York Times Select or the Wall Street Journal, which restricts non-subscribers from accessing certain articles after a set period of time) are direct quotes allowed once the time has passed that they are publicly available online? Thanks!

Pat & Maura: No, there are no reliable “rules of thumb” (in terms of time, or percentages, or whatever). The Statement of Best Practices in Fair Use however, is a reliable source of guidance. Quoting from news sources is permissible under the same general principles as filmmakers use—if the use is appropriate to the transformed use. There is no difference between news and reports. You can quote online materials just as you can quote others.

25. Quotation Limit

Kathleen L.: So I find something I think is relevant and needs to be brought to the attention of my fellow gatherer's but it happens to be some one else's creation, how much can I quote, with acknowledgements before it becomes a violation of their copyright? Most of the time some of us post links to the website, if there is one. What if there's no website to direct them to for the 'rest' of the information... how much of a book or magazine article can we quote without stepping on some body's toes?

Pat & Maura: According to the Statement of Best Practices in Fair Use, documentary filmmakers stipulated that you can only quote from someone else’s material for as long or as much as it takes to make your point. That doesn’t include, incidentally, using others’ material just to save yourself the trouble of making the point in your own words/own images. Please see the Statement of Best Practices in Fair Use for more clarity.
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Privacy

26. Street Filming

Hatef Yamini: If I want to do "man-on-the-street" style documentary interviews, what are the fair use standards that have to be met if I want to distribute the video publicly?

Pat & Maura: This is not a fair use issue. But general filming on a public street is legal. (Read "Yes, You Can! Where You Don't Even Need 'Fair Use' to find out more about this, and to learn what else is legal and free!) But if you focus in on an individual, you should get permission. To be duly diligent, I would either have the interviewees sign a simple release form (see question 8) or videotape them saying what would be in a release form, i.e., I, Man on Street, give you, Hatef Yamini, the right to distribute my likeness, etc. Michael Donaldson, an entertainment lawyer who was on the advisory board for the Statement has written a reliable guide, Clearance and Copyright. The book clearly stipulates what responsibilities filmmakers have when dealing with privacy issues.

27. Copyright Ownership

Anonymous: Do we own the copyright to questions asked?
I've heard a couple differing opinions on this and have chosen to err on the side of caution thus far. We have recordings of conference sessions which typically start with a few speakers making presentations. After the speakers present, the audience is able to ask questions of them. We've recently started putting out audio files of these conference sessions. For our past conference we weren't able to consistently inform all session attendees that sessions were being recorded, so we cut the Q&A part of all the sessions from the audio files. I read somewhere that if attendees hadn't given consent, we didn't own the copyright to their questions. Is it true that we don't own the copyright to audience questions? Is there any chance that they fall under fair use? If we don't automatically have the right to use them, what do we need to do to make sure all our bases are covered for future conference recordings, in which we'd like to include the Q&As? Thanks!

Pat & Maura: Prof. Peter Jaszi of the Washington College of Law at American University comments: The questions don't automatically "belong" to the event organizer. On ownership, the default position is that every participant in a conversation owns his/her own contributions. There may be exceptions, in which the whole exchange is treated as a joint work, available for each contributor to use, but that model doesn't seem to fit the concerns expressed, either. However, I'd suggest that if the questioners are informed that the event will be recorded/broadcast/podcast they are, by speaking up, granting an implied oral non-exclusive license for the uses thus disclosed -- though not for others.
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Media Literacy Education

28. Media Literacy Resources

Denis Doyon: New Mexico Media Literacy Project produces and distributes several multimedia teaching resources that include copyrighted media examples. (See www.nmmlp.org/store) Media literacy education requires close examination and "deconstruction" of media messages. So our CD-ROMs and DVD-ROMs include many media examples -- TV commercials, clips from movies and TV shows, newspaper articles, magazine ads, etc. We have always claimed Fair Use and have never received a complaint from a copyright holder. Our claims for Fair Use rest on these factors: - We are a nonprofit organization. We include media examples for purposes of criticism; they are always accompanied by discussion questions and/or lesson plans. Our resources are intended for educational use in classrooms and community settings. Any single media example (e.g. movie clip) constitutes only a small part of a particular CD-ROM or DVD-ROM. Factors that weigh against our claim of Fair Use include: We sell our CD-ROMs and DVD-ROMs. Some media examples (such as TV commercials or magazine ads) are used in their entirety. What do you think of our claims? What could we do to strengthen them? What should we avoid doing? Thanks for this opportunity. Copyright and Fair Use issues are critically important to media literacy education.

Pat & Maura: We agree that fair use is absolutely critical to media literacy and media education. The issues that you are confronting have a lot of similarities to the problems that documentary filmmakers faced, and their Statement can be helpful in providing general principles and limitations (which your own message suggests you are in synch with). We look forward to being able to offer more specific advice in 2008. Renee Hobbs at Temple University, Pat Aufderheide at the Center for Social Media and Peter Jaszi at the Washington College of Law at American University are coordinating a Statement of Best Practice in Media Literacy.

Many of the justifications you are using are similar to those of documentary filmmakers. Please take a look at the Statement of Best Practices in Fair Use In the meantime to get a clear picture of what doc filmmakers believe is fair use. Whether the use occurs in the classroom or in media, your rights are similar.

As we have stated earlier, it isn’t critical to fair use analysis whether your organization is a non-profit. It also shouldn’t be determinative in the law whether you are profiting off of your material. Doc filmmakers stipulated in the Statement that the length of the fair used material should go on long enough to make the filmmaker’s point, and no further. Another resource that may be helpful is our fair use examples page, where several filmmakers have used advertising in their work, fairly. (And if you would like to add examples to that page, we would be delighted!)

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29. Media Copyrights for Classroom Use

Anonymous: In my introductory World Politics course I have the students make short videos expressing and representing their assigned group's position on some issue. Students being students, they often want to use popular music and short clips of films and TV shows in their videos. If they do this, is it still fair use a) if the videos are simply used in the classroom; b) if the videos are posted on YouTube; and c) if short excerpts from those student videos find their way into videos (which will be posted on YouTube or shown at recruitment events) about the university or the University College or General Education programs of which the course is a part?

Pat & Maura: The filmmakers who created the Documentary Filmmakers’ Statement would not necessarily view all these uses (i.e. pop songs borrowed as generic soundtrack) as fair use, though some of them (media clips used to launch or illustrate critique) may be. One way to deal with this is to explain and discuss fair use in your class --feel free to hand out the Statement of Best Practices in Fair Use! Also let your students know about what material they have a right to use freely: material in the public domain, and about their ability to use, within certain limits, songs and images with Creative Commons licenses. Also, many universities and colleges buy music libraries, which your students are probably free to use in their projects—check with your librarian. See the answer to question 28 for more information.
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Featured Resources

Documentary Filmmakers, Best Practices in Fair Use

Documentary filmmakers have created, through their professional associations, a clear, easy to understand statement of fair and reasonable approaches to fair use.

The Center showcases and analyzes strategies to use media as creative tools for public knowledge and action. It focuses on social documentaries for civil society and democracy, and on the public media environment that supports them. The Center is part of the School of Communication at American University.

Patricia is a professor in the School of Communication at American University in Washington, D.C., and the director of the Center for Social Media there.She is the author of, among others, Documentary: A Very Short Introduction (Oxford, 2007), The Daily Planet

Maura is an MFA candidate in film and media arts at American University and a graduate associate at the Center for Social Media, where she works on the Center's fair use project with video production and web technology. She is also documentary filmmaker and editor in DC.