Copyright and Documentary Film
Using copyrighted material in a documentary (from Documentary Filmmakers’ Statement of Best Practices in Fair Use)
In many cases the best (or even the only) effective way to tell a particular story or make a point is to make selective use of words that were spoken during the events in question, music that was associated with the events, or photographs and films that were taken at that time. In many cases, such material is available, on reasonable terms, under license. On occasion, however, the licensing system breaks down.
Principle: Given the social and educational importance of the documentary medium, fair use should apply in some instances of this kind. To conclude otherwise would be to deny the potential of filmmaking to represent history to new generations of citizens. Properly conditioned, this variety of fair use is critical to fulfilling the mission of copyright. But unless limited, the principle also can defeat the legitimate interests of copyright owner—including documentary filmmakers themselves.
Limitations: To support a claim that a use of this kind is fair, the documentarian should be able to show that:
• the film project was not specifically designed around the material in question;
• the material serves a critical illustrative function, and no suitable substitute exists (that is, a substitute with the same general characteristics);
• the material cannot be licensed, or the material can be licensed only on terms that are excessive relative to a reasonable budget for the film in question;
• the use is no more extensive than is necessary to make the point for which the material has been selected;
• the film project does not rely predominantly or disproportionately on any single source for illustrative clips;
• the copyright owner of the material used is properly identified
The safest way to stay out of trouble when making a film (from Desktop Documentaries)
Create all your own content (music, movies, photos, etc).
Use content in the Public Domain, such as old government films stored in the national archives. Check out www.archive.org for lots of free downloadable film clips.
Use content that has been made available under a Creative Commons License. This is a very cool system where the artist keeps the copyright, but allows others to copy and share their work as long as you give them credit and/or follow some pre-set conditions. www.creativecommons.org