Fair Use, Films and the First Amendment

The LA Times reports on the importance of fair use in allowing documentary filmmakers to engage in protected speech: Copyright isn't the last word: "The documentary 'Enron: The Smartest Guys in the Room,' Alex Gibney's chronicle of the excesses and collapse of the giant energy company, could not have been made without the use of some unlicensed copyrighted material. Neither could 'Outfoxed: Rupert Murdoch's War on Journalism,' Robert Greenwald's exposé of Fox News, which was packed with damning footage the network would never have cleared."

This Documentary Filmmakers’ Statement of Best Practices in Fair Use was developed 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), in consultation with the Center for Social Media in the School of Communication at American University and the Program on Intellectual Property and the Public Interest in the Washington College of Law at American University:

This Statement of Best Practices in Fair Use is necessary because documentary fi lmmakers have found themselves, over the last decade, increasingly constrained by demands to clear rights for copyrighted material. Creators in other disciplines do not face such demands to the same extent, and documentarians in earlier eras experienced them less often and less intensely. Today, however, documentarians believe that their ability to communicate effectively is being restricted by an overly rigid approach to copyright compliance, and that the public suffers as a result. The knowledge and perspectives that documentarians can provide are compromised by their need to select only the material that copyright holders approve and make available at reasonable prices.

The statement puts forth four categories of uses that are most likely to generate a fair use of a copyrighted work:

1. Employing copyrighted material as the object of social, political, or cultural critique
2. Quoting copyrighted works of popular culture to illustrate an argument or point
3. Capturing copyrighted media content in the process of filming something else
4. Using copyrighted material in a historical sequence