On April 15th, educators and media makers had more interesting things to contemplate than their taxes at the Broadcast Education Association's annual convention in Las Vegas, because they were talking about fair use! For the BEA's Documentary Workshop on Fair Use, I got together with two of the Center's long-time collaborators, documentary filmmaker Gordon Quinn of Kartemquin Films and Michael C. Donaldson, an entertainment lawyer who specializes in fair use and independent film, to present on how filmmakers lost and have since re-gained their right to claim fair use on copyrighted material.
Gordon got us started with film clips that showed how he and other filmmakers in the 60s and 70s used to make use of copyrighted material that they hadn't cleared, before the major copyright holders got tough on making sure that everything was licensed. He then talked about how much the rights clearance culture changed in the 80s and early 90s, to the point where they found themselves clearing footage they absolutely never would have cleared before. As an example, he showed a clip from his film Hoop Dreams, where the filmmakers had captured a family singing happy birthday--and then were forced to get the rights to the song.
With Gordon's great lead-in, I went on to talk about how the media culture had turned to one where everything needed to be cleared--in short, re-written copyright laws, consolidation of the power of large archival material owners and no real consideration for the needs and means of small independent filmmakers--and discussed how the Center for Social Media has facilitated the creation of the Documentary Filmmaker's Statement of Best Practices in Fair Use to re-establish the rights of documentary filmmakers to use copyrighted material. I also explained the basic categories of use that fall under fair use, and I encouraged the audience to go to the Fair Use section of the Center's website, to access more materials for learning about--and teaching--fair use.
Finally, Michael wrapped us up by breaking down his rubric for determining if a use of copyrighted material falls into the "safe harbor" of fair use. He asks 3 questions: 1) Do you need to use this particular piece of copyrighted material to illustrate your point?; 2) Did you use only as much as you needed to make your point?; and 3) Is the connection you're making clear? If you can safely answer 'yes' to those three questions, you are definitely in the safe harbor of fair use. However, even if you can't definitely answer yes to all three, you might still be able to claim fair use--you're just in a gray area that could be potentially challenged. This rubric can help you determine where you are definitely able to claim fair use, and hopefully can help you figure out how to move your "gray area" clips into the safe zone.
We ended the workshop with a lively Q & A session that included testimonials from filmmakers who were able to make films they couldn't have otherwise because of the Fair Use Statement, and questions about how to push university administrations to recognize filmmaker's/professor's rights to use fair use and whether or not fair use applies if you're making your film in another country--among other things. Excellent questions, and a fantastic conversation to be having about fair use. We at the Center look forward to continuing it at next year's BEA convention!