by Steven D. Zansberg, Ballard Spahr, LLP
Using outside footage in your documentary – it’s an effective editing technique that can add relevance to your film. Clips from a newscast, or a montage of different clips edited together can add historical perspective or other impact to a segment. A poignant photo that helps to capture the essence of your storyline, or a musical passage that triggers a specific emotion . . . these are elements to consider in editing a documentary. But is it legal to use content that doesn’t belong to you? The answer is yes, no and maybe.
The crux of the issue is copyright infringement versus fair use. How much of another person’s work can you use, without a license (permission), and how much is too much? Can you use an entire photograph, or must you use only a portion of it? And these are only the most basic of the questions, before others that follow: Does it matter if your film will be distributed exclusively in movie theaters, shown only at festivals, or aired on HBO or PBS? Are you “off the hook,” legally, if you provide an end credit to the author of the work?
Before delving into these and other complicated issues, let’s start with a simple question “what, exactly, is ‘the rule’ on fair use?” A lot has been written and devoted to this subject. And if you want to dig deep into the legalities of fair use, there are literally hundreds of published judicial decisions applying the four-part statutory exemption for fair use (17 U.S.C. § 107) to a broad range of circumstances. In theory, at least, this material provides useful guideposts in helping you determine fair use. But then, you may not have earned a law degree. So, let’s start with some basic definitions.
- What is Copyright?
Copyright is the intellectual property right of ownership in original expression (text, photos, painting, music, sculpture, etc.) created by a human (not a monkey or a machine) that attaches (springs into life) the moment the creative expression is “fixed in a tangible medium.” The right of ownership exists, under the law, the moment one creates expression (not merely an idea) and records it in some way in a “tangible medium.” Among the so-called “bundle of rights” the owner of a copyrighted work possesses is the right to prohibit others from making copies of that protected expression, without the owner’s prior permission. An additional right of the copyright owner is the right to prohibit others from creating, without prior permission, a “derivative work” that is generated by express or implicit reference to the original copyrighted work. Additional rights, including statutory damages as high as $150,000 per infringement, plus attorney’s fees, come to a copyright owner upon formally registering the copyrighted work with the United States Copyright Office, but registration is not necessary for the right of ownership in the intellectual property to exist.
- What is Fair Use?
Recognizing that a 100% prohibition on the copying of original expressive works by others would stifle creativity and the generation of new expressive works, Congress enacted an exception to the copyright owner’s right to grant (or deny) permission to others to reproduce his/her copyrighted work. Section 107 of the Copyright Act states that:
[T]he fair use of a copyrighted work, including . . . by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching . . . , scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. . . .
These legal definitions may appear cut and dry, but it’s the way in which these factors interact and are applied to real-world applications that creates the gray areas concerning fair use. One of the biggest challenges is the difficulty in predicting how your case may hold up if it ends up in court. The truth is, when it comes to a particular use of another’s copyrighted work in a documentary film or news reporting, there are wildly disparate outcomes reported in published judicial decisions to date.
Let me give you one example. Step back a quarter of a century. An infamous home video emerged of police officers beating Rodney King in Simi Valley, California. Rodney King was black. The police officers were white. In 1993, the officers were all found not guilty. This set off rioting in the streets of L.A. that was documented by local television stations. Perhaps the most famous incident of those riots was the beating of a truck driver, Reginald Denny. The entire incident of African American rioters pulling Denny out of his truck and almost beating him to death was captured on videotape by a helicopter news crew. The footage was seen everywhere, on every national and local newscast for weeks after. The copyright owner of that footage, Los Angeles News Service, sued several different companies who had incorporated that footage into their reports. In one case, the usage was found to be a fair use and therefore not copyright infringement. In the other case, decided earlier by the same appeals court, the inclusion of the same footage (though a longer clip) in a different broadcast report was deemed not necessarily a fair use, and therefore it was up to a jury to decide whether it constituted copyright infringement.
The difference between the two cases’ outcomes turned largely on the factors of “nature and purpose of the use” and the amount of the footage that the two defendants had used. In the earlier case against Los Angeles television station KCAL-TV, the defendant used only 45 seconds of the 4 minute footage, but it was “the heart of the matter,” showing the brutal assault on the helpless truck driver as he lay in the street. And, that defendant’s use – on a nightly news broadcast that competed directly with the news reporting of LANS, was found to present an open question (for the jury to decide) whether the use was “fair” or infringing.
In contrast, in the second case, the defendant, cable channel Court TV Network, used only a few seconds of the Denny beating footage, in a promotional spot advertising the networks’ coverage of the trial of one of Denny’s assailant’s (for that assault), and also in a stylized promo for the network’s nightly program of courtroom coverage from across the nation. These two uses were found to be “transformative,” used a much shorter length clip than KCAL’s usage, and, perhaps most importantly, Court TV was not in direct competition with LAN in delivering nightly breaking news. Thus, Court TV’s use was held to be “fair” as a matter of law.
The lack of predictability of fair use safety is compounded by two additional facts: (1) Judges have made it loud and clear that no one of the four statutory factors (items (1) – (4) above) is itself dispositive, and all four factors must be considered, in tandem. So, judges or juries must independently determine how much weight to give to each of the four statutory factors. (2) Also, the courts have crafted a legal doctrine – the “transformative use test” – to guide the factfinder’s decision-making. The transformative use theory claims that use of copyrighted work is deemed “fair use” if, considering the totality of circumstances, the use in the new work is “transformative” of the original purpose, intent, or effect of the original. In other words, have you created a new work with new meaning and/or context? This doctrine has garnered a significant amount of judicial recognition and adoption, notwithstanding the unquestionable subjectivity of its application. The added difficulty of predicting whether a judge or jury will find a particular use sufficiently “transformative” to be deemed a “fair use” hardly moves the ball forward.
The bottom line, there is no “simple, easy test” that a documentarian can apply to a proposed usage, without permission, of a particular copyrighted work in a particular documentary. In live training sessions, I like to say if two lawyers are presented with a particular use of a copyrighted work in a particular film or broadcast report, they are likely to offer a minimum (there is no maximum) of three different opinions whether the fair use exemption applies.
Four Factors and Two Rules of Thumb
Okay, if you’re comfortable living with this uncertainty, there are some reasonably reliable guideposts that are helpful to documentary makers.
First, ask yourself this question: “Is my documentary a commercial or non-profit educational commercial nature?” In the non-profit or educational universe, the usage of materials for a journalistic or educational project is more likely to be deemed a fair use under this factor than a profit-making commercialization (e.g., selling tee shirts, posters, or coffee mugs bearing a copyrighted image). However, as one of the judicial outcomes described above makes clear, merely because copyrighted work is incorporated into a news report, or a documentary film, does not automatically exempt it from copyright infringement.
The news agency Agence France Presse learned this lesson the hard way in 2011, when it distributed, without the photographer’s permission, the only photographs taken of the devastating earthquake in Haiti in the immediate aftermath of that tragedy; the photographer, David Morel, recovered the maximum statutory damages of $150,000 for each of the eight photos that AFP distributed to news outlets across the globe, for a total award of $1.2 million.
TWO RULES OF THUMB
In light of this significant financial exposure for using others’ copyrighted works without permission, what “rules of thumb” can guide documentarians as they ponder whether to use copyrighted work in their documentary films? I offer two that my clients have found both practicable and understandable.
Rule of Thumb No. 1: Determine what you are reporting or commenting upon.
This rule is perhaps the best way to determine, with a fairly-high degree of certainty, that any usage you make of another’s copyrighted work will be deemed a fair use, under Factor 1 and the “transformative use” test. Fair use of a copyrighted work “for purposes such as criticism, comment, [or] news reporting” means, essentially, that you are permitted to report on, or provide criticism or commentary of, the copyrighted work itself.
Here’s an example:
Voiceover: “The student protests against continued American involvement in Vietnam garnered an extensive amount of media coverage, both in daily newspapers across the nation, and on the evening news.” Clearly, a documentary focusing on historical events of the 1960s and 70s, or the anti-war movement more specifically, could make a fair use of existing newspaper articles, headlines, and brief snippets of news reports that were broadcast by major news outlets to illustrate this narration. The voiceover makes clear that the documentarian is reporting/commenting on the existence of those copyrighted works.
In contrast, use of the exact same set of copyrighted images and news footage to illustrate the following narration is less likely to be deemed a fair use: “The 1960s were a turbulent time in which society wrestled with profound issues of war and peace, civil rights, and generational change.” Certainly an argument could be made that the use of such footage to accompany this narration is also a fair use. However, in this latter scenario, the press coverage of Vietnam War protests would be considered more in the nature of “wallpaper,” or “B-roll” – visual imagery used to depict the underlying events captured in those news clips, not the fact that such footage was broadcast or the impact that such prior press reports had on the narrative of the documentary. Although this distinction may be subtle, in some cases, it is of crucial importance to distinguishing between whether the footage is being utilized to illustrate a narrative distinct from the existence of the copyrighted work, i.e., the underlying subject matter of that copyrighted work (i.e., the turbulent events of the 1960s), as opposed to discussing the amount and nature of press reports covering those events at the time.
Another example would be file footage of legendary prize fighter Muhammad Ali engaging in verbal jousting with sportscaster Howard Cosell, including Ali’s trademark “float like a butterfly, sting like a bee” eloquence. Using such a clip in a documentary that addresses the evolution of boxing as a sport or, even, perhaps merely a biography of the late “The Greatest” Ali, may well be deemed, again, wallpaper or footage found to highlight the content or substance of the clip. However, were the documentary to focus more on Ali’s transformation of the sport as a result of his deft handling of the press and being a master showman/self-promoter, the use of a clip or clips is more likely to be deemed a fair use, because it is comment or criticism of or about the copyrighted work.
A couple of cautionary points with respect to this Rule of Thumb. First, it is not a “necessary” condition for coming within the fair use safe harbor. Instead, it is, more likely than not, a sufficient condition for being a fair use. Second, the distinctions can be quite subtle. And, merely changing the voiceover narration in a documentary on history of professional boxing, for example, to reference the fact that Ali was a frequent guest on ABC’s Wide World of Sports program, in order to “set up” that clip, could be deemed an artificial “foundation” for using the clip, and therefore, a flawed claim of fair use.
Here’s a good takeaway. If there is a legitimate “need,” within a documentary, to address the existence and/or significance of a prior copyrighted work itself, then showing a small portion of that work (see Rule of Number No. 2 below) is far more likely to be deemed a fair use than the claim (which documentarians frequently espouse) that “the public is entitled to see” the content of the underlying work merely as illustrating a point made in the documentary.
Rule of Thumb No. 2: Use only what you need and no more.
This rule relates primarily to the third statutory factor, which examines “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” Taking merely a few frames or seconds out of a two-hour feature film or a six-minute song is far less likely to be deemed copyright infringement than copying the entirety of a photograph, a 20‑line poem, or a 30‑second television advertisement. Using only a small portion of a copyrighted work, even if merely to illustrate a point, is also far less likely to be deemed a commercial substitute for the entire copyrighted work that is considered under the fourth statutory factor. But even a small portion, if it is “the heart of the matter” (as in the Reginald Denny beating footage) can be deemed a substantial amount, subecting the person copying to liability.
Republishing a photograph (100% of the copyrighted work) is a riskier proposition for fair use than reproducing only a small fraction of a longer song, film, book, or painting. This does not mean that photographs or entire paintings can never be used under the fair use doctrine without the photographer’s or painter’s permission, but it is, obviously, a riskier proposition.
Perhaps the easiest way to convey the rule “Use only what you need to illustrate your point, and no more,” is the famous quotation from Atticus Finch in To Kill a Mockingbird: “You never really understand a person until you consider things from his point of view . . . until you climb into his skin and walk around in it.” So, when filmmakers and news producers ask me whether their incorporating ten or twelve seconds of another company’s video clip constitutes a fair use, my question back to them is, “How would you react if that was your footage that some other filmmaker incorporated into his or her production?” Documentary producers understand, viscerally, what it means to have their work reproduced without permission, and they appreciate that their copyrighted works should not be used by others without permission (and, perhaps appropriate licensing fees) unless the usage is, in fact, a “fair use.” So, even if the inclusion of the copyrighted work in a documentary is for the legitimate purpose of “comment, criticism, or news reporting” on the existence of the copyrighted work, the documentary must use no more of the copyrighted work than is necessary to make that point. If a full sound-up of Muhammad Ali’s “I’m so fast that last night I turned off the light switch in my hotel room and was in bed before the room was dark” is sufficient to demonstrate his verbal prowess in the media, then stringing together two or three additional such clips, especially from the same source, runs the risk of “taking too much,” under the third and fourth statutory factors.
These two rules of thumb are, once again, by no means the end-all and be-all of fair use. Others have presented robust and persuasive positions, with which I agree, that fair use in documentaries is not narrowly limited to merely commenting on and demonstrating the existence of prior published copyrighted works. So, please do not mistake these two rules of thumb as exhausting the universe for fair usage of copyrighted works in documentaries. Put another way, the diagram below shows that Rule of Thumb No. 1 describes merely a subset of the universe of uses which constitute a fair use.
Nevertheless, Rule of Thumb No. 2 applies to all uses outside the smaller inside circle of fair uses contained under Rule of Thumb No. 1 above. In other words, one should always strive to use the smallest amount of the copyrighted work being reproduced without permission that is needed to illustrate the point for which the fair use is being made.
I hope you find these two rules of thumb of use to you as you proceed in selecting material for inclusion in your future documentaries.
 L.A. News Servs. v. CBS Broad., Inc., 305 F.3d 924 (9th Cir. 2002).
 L.A. News Servs. v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).
 Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) (“Nor may the four statutory factors be treated in isoloation, one from the other. All are to be explored, and results weighed together, in light of the purposes of copyright.”).
 Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1989-90).
 Neil Netanel, Making Sense of Fair Use, 15:3 Lewis & Clark L. Rev. 715 (2011)(surveying case law and presenting data “showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine”).
 As one university’s guide states, “the outcome of a court’s fair use analysis can be hard to predict since the test is subjective and open to interpretation.” Basic Information on Copyright and Fair Use for Using Works of Others at 3, U. So. Cal. (2006).
For more than two decades, Steven D. Zansberg has represented media companies, online publishers, and individuals in defending claims based on content, fighting subpoenas, and seeking access to government information and proceedings. He represented the national news media in connection with coverage of the Aurora theater shooting case, the Oklahoma City bombing trials, and the Kobe Bryant rape prosecution. He secured access to public records related to the murder of JonBenét Ramsey and the shooting at Columbine High School. Steve also litigates copyright and trademark matters. Steve has also defended dozens of defamation and invasion of privacy cases in both state and federal courts across the nation. He has successfully briefed and argued appeals to the Colorado Supreme Court and the U.S. Court of Appeals for the Ninth and 10th Circuits.
Steve is an active leader in the national media law bar. He is a past Chair of the American Bar Association’s Forum on Communications Law, and has chaired several other committees within the ABA and the Media Law Resource Center. Steve also serves as the President of the Colorado Freedom of Information Coalition, which educates about and promotes greater transparency in state and local governments.
Steve has taught media law and internet law at the University of Colorado and at the University of Denver’s Sturm College of Law.
Prior to attending law school, Steve Zansberg was a professional documentary producer, for KQED-TV, and PBS. Attorneys in Ballard Spahr’s Media and Entertainment Practice Group regularly work with non-fiction filmmakers and documentarians, across the nation, to reduce legal risks associated with, and (if need be) to defend claims premised on, such productions.