Documentary Filmmakers Adopt Position on Fair Use

By Mark Litwak

A broad coalition of groups influential in documentary filmmaking have come together to issue a joint statement as to what they consider acceptable practices when applying the Fair Use Doctrine to documentary films.

The Statement was authored by the Association of Independent Video and Filmmakers; Independent Feature Project; International Documentary Association; National Alliance for Media Arts and Culture; and Women in Film and Video (Washington, D.C., chapter).

This important Statement will likely be considered by courts in resolving fair use disputes. It can be downloaded for free from the Center for Social Media http://www.centerforsocialmedia.org/fairuse.htm

Many writers and filmmakers are confused about the fair use doctrine and whether they need permission to borrow from copyrighted works. Documentary filmmakers are often uncertain whether they can borrow, and how much they can borrow, to incorporate in their film without a license. Obviously, a filmmaker preparing an expose or even taking a critical look at a subject cannot expect the subject to grant them a license. Robert Greenwald is not going to get, nor did he even bother to ask, for permission from the Fox Network for inclusion of their television footage in his film "Outfoxed: Rupert Murdoch's War on Journalism."

If the fair use doctrine applies, no license is needed to borrow from a copyrighted work. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers that if you borrow extensively from one author's work, you are a thief; but if you borrow from hundreds, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new.

The Statement addresses common situations faced by filmmakers such as when can they quote works of popular culture without permission, and when will an incidental use of background music or visuals on a television set be considered a fair use.

In determining whether the use of a copyrighted work is fair use, courts weigh four factors:

1) The purpose and character of the work: A non-profit educational use is more likely to be considered a fair use than a commercial use. A commercial use is one that earns a profit.

2) The nature of the copyrighted work: There is greater public interest in allowing borrowing for scientific, biographical and historical works than for entertainment works.

3) The amount and substantiality of the portion borrowed in relation to copyrighted work as a whole: Taking one sentence from a five hundred page book is more likely to be considered a fair use than taking a sentence from a ten line poem.

4) The potential adverse effect on the market for, and value of, the copyrighted work: If borrowing from the copyrighted work harms the market for it, the use is less likely to be considered a fair use. Borrowing a sentence from a novel and incorporating it in another, completely different kind of work, such as a scholarly work, is unlikely to have any effect on sales of the novel. Likewise, borrowing from a book that is out of print is not likely to have an adverse impact on its sales.

In applying these factors to a specific factual situation, it can often be difficult to predict whether a use will fall within the doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works. Clearly, a writer can borrow historical facts from a previous work without infringing upon the first author's copyright, because of both the fair use doctrine and because historical facts are not copyrightable. Moreover, since factual works, unlike works of fiction, may be capable of being expressed in relatively few ways, only verbatim reproduction or close paraphrasing will be an infringement.

Writers should be more cautious in borrowing from novels and other fictional works. In one case, the author of the book "Welcome to Twin Peaks: A Complete Guide to Who's Who and What's What," was found to have infringed the television series "Twin Peaks." The book contained detailed plot summaries and extensive direct quotations of at least eighty-nine lines of dialogue.

One encounters a lot of grey areas in applying the fair use doctrine. It is safe to say that a schoolteacher will be protected if she photocopies a Newsweek article and distributes it to her class on one occasion. If the schoolteacher, however, photocopies an entire textbook and distributes it to her students in order to save them the expense of purchasing their own texts, this would not be a fair use. But there are many factual situations that lie between these two extremes; and in those cases it can be difficult to predict whether the fair use doctrine will be a good defense.

A broad coalition of groups influential in documentary filmmaking have come together to issue a joint statement as to what they consider acceptable practices when applying the Fair Use Doctrine to documentary films.

The Statement was authored by the Association of Independent Video and Filmmakers; Independent Feature Project; International Documentary Association; National Alliance for Media Arts and Culture; and Women in Film and Video (Washington, D.C., chapter).

This important Statement will likely be considered by courts in resolving fair use disputes. It can be downloaded for free from the Center for Social Media http://www.centerforsocialmedia.org/fairuse.htm

Many writers and filmmakers are confused about the fair use doctrine and whether they need permission to borrow from copyrighted works. Documentary filmmakers are often uncertain whether they can borrow, and how much they can borrow, to incorporate in their film without a license. Obviously, a filmmaker preparing an expose or even taking a critical look at a subject cannot expect the subject to grant them a license. Robert Greenwald is not going to get, nor did he even bother to ask, for permission from the Fox Network for inclusion of their television footage in his film "Outfoxed: Rupert Murdoch's War on Journalism."

If the fair use doctrine applies, no license is needed to borrow from a copyrighted work. It gives the public a limited right to draw upon copyrighted works to produce separate works of authorship. Such uses include fair comment and criticism, parody, news reporting, teaching, scholarship and research. Thus, a movie or literary critic does not need permission to include a small quote from a work being reviewed. It is sometimes said of writers that if you borrow extensively from one author's work, you are a thief; but if you borrow from hundreds, you are a scholar. Of course, the scholar adds value by synthesizing information from prior works and creating something new.

The Statement addresses common situations faced by filmmakers such as when can they quote works of popular culture without permission, and when will an incidental use of background music or visuals on a television set be considered a fair use.

In determining whether the use of a copyrighted work is fair use, courts weigh four factors:

1) The purpose and character of the work: A non-profit educational use is more likely to be considered a fair use than a commercial use. A commercial use is one that earns a profit.

2) The nature of the copyrighted work: There is greater public interest in allowing borrowing for scientific, biographical and historical works than for entertainment works.

3) The amount and substantiality of the portion borrowed in relation to copyrighted work as a whole: Taking one sentence from a five hundred page book is more likely to be considered a fair use than taking a sentence from a ten line poem.

4) The potential adverse effect on the market for, and value of, the copyrighted work: If borrowing from the copyrighted work harms the market for it, the use is less likely to be considered a fair use. Borrowing a sentence from a novel and incorporating it in another, completely different kind of work, such as a scholarly work, is unlikely to have any effect on sales of the novel. Likewise, borrowing from a book that is out of print is not likely to have an adverse impact on its sales.

In applying these factors to a specific factual situation, it can often be difficult to predict whether a use will fall within the doctrine. Generally speaking, a greater amount of material may be borrowed from non-fiction works than from fictional works. Clearly, a writer can borrow historical facts from a previous work without infringing upon the first author's copyright, because of both the fair use doctrine and because historical facts are not copyrightable. Moreover, since factual works, unlike works of fiction, may be capable of being expressed in relatively few ways, only verbatim reproduction or close paraphrasing will be an infringement.

Writers should be more cautious in borrowing from novels and other fictional works. In one case, the author of the book "Welcome to Twin Peaks: A Complete Guide to Who's Who and What's What," was found to have infringed the television series "Twin Peaks." The book contained detailed plot summaries and extensive direct quotations of at least eighty-nine lines of dialogue.

One encounters a lot of grey areas in applying the fair use doctrine. It is safe to say that a schoolteacher will be protected if she photocopies a Newsweek article and distributes it to her class on one occasion. If the schoolteacher, however, photocopies an entire textbook and distributes it to her students in order to save them the expense of purchasing their own texts, this would not be a fair use. But there are many factual situations that lie between these two extremes; and in those cases it can be difficult to predict whether the fair use doctrine will be a good defense.

Borrowed Elements or Stolen Ideas?

By Mark Litwak, Attorney At Law

When writers submit their work, they become vulnerable to theft. As an entertainment attorney I often hear from writers who believe that they have been ripped off. Usually the writer is a novice without representation who submits a script to an established production company. The company passes on the script or does not acknowledge its receipt. Months or years go by and one day the writer stumbles upon a movie that closely resembles his story and the credits show a recipient of the writer’s script made it. The writer is convinced that his work was stolen and his copyright infringed. This may or may not be the case.

            Many writers do not have a solid understanding of the nature and extent of what copyright law protects, and they may not know that they can also protect their interests under the principles of contract law. Let’s begin with a discussion of copyright law.

            Copyright does not protect story ideas, concepts or themes. So ten authors can write different stories about a doomed romance between lovers from dissimilar backgrounds, resulting in Romeo and Juliet, West Side Story and other variations. Also, facts and historical incidents are not copyrightable, so numerous authors could each write a biography on George Washington based on the same facts and incidents.

            What copyright law does protect is the “expression of the author,” the particular manner in which the writer tells the story, his approach to the material, his voice. In other words, what is protected is the embellishment on the idea, not the idea itself.

            Consequently, others are free to borrow uncopyrightable elements from your work. But if they borrow your expression, then they have crossed the line. Granted it may be difficult to tell when an idea has been sufficiently embellished upon that the resulting work is considered an expression of an author and protected, but generally the more detailed the story, the greater the protection you will receive.

            So how can a writer protect his ideas? By contract. While ideas are not protected by copyright, they are a form of intellectual property, and the recipient of an idea can agree to pay the provider for it. Such an agreement can be an enforceable contract.

            In order to understand how a writer’s idea can be protected by contract, let us first review some legal principles. There are different kinds of contracts. Some are written, others are oral. Contrary to popular belief, oral contracts may be valid. However, it is usually advantageous to have a written agreement, if only because it’s evidence as to what the parties agreed.

            The best way for a writer to protect himself would be to have the recipient of a story idea sign a written agreement. However, it may be awkward for a writer to begin a meeting with such a request. Some producers might be offended or worry about liability. They might want to consult their lawyer. Since writers often experience difficult just getting in the door to see a powerful producer, asking for a written agreement may not be practicable.

            A less-threatening approach would be to enter into an oral agreement with the producer. The writer begins the meeting by simply saying: “Before I tell you my idea, I want to make sure you understand that I am telling you this idea with the understanding that if you decide to use it, I expect to receive reasonable compensation.” The producer most likely will nod her head yes or say “of course,” in which case you have a deal. If the producer indicates that she does not agree to these terms, leave without presenting the story.

            Since a contract made under these circumstances isn’t in writing, there might be a problem proving its existence and terms. That is why it’s advisable to have a witness or some documentation. You could bring a co-writer, agent or associate along to the meeting. After the meeting you might send a letter to the producer reiterating your understanding. The letter should be cordial and non-threatening. You could write: “It was really a pleasure meeting with you to discuss my story about singing cat. As we agreed, if you decide to exploit this material, I will receive reasonable compensation.” If the terms set forth in your letter are not disavowed by the recipient, the letter could be considered of your agreement. Since the letter has not been signed by the producer, her agreement is implied from the fact that she didn’t object. Of course, if the producer confirms these terms in writing, that would give you even better evidence.

            But what if the producer listening to your pitch doesn’t steal your story but repeats it to another producer who uses it? You can protect yourself by also stating: “I am telling you my idea with the understanding that you will keep it confidential and will not tell it to anyone else without my permission.” If the producer nods her head okay or says yes, you have a deal, and you can sue if she breaches her promise.

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Mark Litwak is a veteran entertainment attorney and Producer’s Rep based in Beverly Hills, California. He is the author of six books including: Reel Power, the Struggle for Influence and Success in the New Hollywood, Dealmaking in the Film and Television Industry, Contracts for the Film and Television Industry, and the recently published Risky Business, Financing and Distributing Independent Film. He is the author of the CD-Rom program Movie Magic Contracts, and the creator of the Entertainment Law Resources website where he can be reached: www.marklitwak.com ]