Making Documentaries:
What Is Fair Use?

Filmmaker Question:

Hi Gordon. Can you give a clear outline of what denotes "Fair Use" when using news footage and news photos for your documentary?

Thanks!

Kerry

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Answer | Entertainment Attorney, Gordon Firemark

Hi Kerry,

Thanks for your question. I understand you're looking for some guidance regarding what denotes "Fair Use" when using news footage and news photos in a documentary.

Unfortunately, there is no clear outline or guideline because the law specifically states that there are no "rules of thumb" for fair use.

Each use has to be analyzed separately, standing alone.

The analysis must be performed using the 4-factor balancing test, and no single factor is dispositive of the issue.

To recap, the 4 factors are:

1. Purpose & Character of the alleged infringing use.

2. Amount and Substantiality of the portion taken from the copyrighted work.

3. Nature of the original work, and how transformative the new work is.

4. The effect or impact on the market for the original.

It's also important to remember that Fair Use is a defense, not an exception, so if the copyright owner believes your use is infringing, they will sue, and only then do you get to argue the case (at significant expense).

That's why I almost always recommend against relying on fair use, and obtaining proper permission / licenses if it's at all possible.

I’ve prepared a handy Fair Use Quick Reference Guide that you can download for free.

Just visit https://firemark.com/fairuseguide, provide your email address, and it's yours.

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About Gordon P. Firemark

Mr. Firemark is an entertainment attorney based in California and also teaches Entertainment Law in Columbia College Hollywood's film program. He's the producer and host of Entertainment Law Update, a podcast for artists and professionals in the entertainment industries and the author of The Podcast, Blog and New Media Producer’s Legal Survival Guide. 

Firemark's Documentary Legal Tool Kit is offered exclusively here on Desktop Documentaries.

The Law Offices of Gordon P. Firemark cover intellectual property, cyberspace, new media and business/corporate matters for clients in the entertainment industry. Learn More: firemark.com

This content is not intended to be used as a substitute for specific legal advice. No recipient of this content should act or refrain from acting on the basis of content without seeking appropriate legal advice or other professional counseling.

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From The Offices of Entertainment Attorney Gordon P. Firemark