A major errors and omissions insurer, National Union, a member company of AIG, is accepting Fair Use claims based on the Documentary Filmmakers’ Statement of Best Practices in Fair Use, when supported by an appropriate lawyer’s letter. This is an extraordinary demonstration of the power of this best-practices approach to making the fair-use option in copyright law useable again. "This is great news," said filmmaker Alex Gibney, who recently got insurance with such claims recognized.
In only a year, the Documentary Filmmakers’ Statement of Best Practices in Fair Use has changed the clearance practices of documentary filmmakers. The Statement was created by five national filmmakers’ organizations (Association of Independent Film and Videomakers; Independent Feature Project; National Alliance for Media Arts and Culture; Women in Film and Video [D.C.]), with coordination from two American University organizations: Washington College of Law’s Program on Information Justice and Intellectual Property and School of Communication’s Center for Social Media. It has been endorsed by many film and broadcast organizations.
Many documentarians, including Gibney, Robert Greenwald and his entire Brave New Films producer team (Wal-Mart: The High Cost of Low Price, Iraq for Sale), Kirby Dick (This Film Is Not Yet Rated) and Byron Hurt (Hip Hop: Beyond Beats and Rhymes) have employed the Statement to make and release their films. Public television—both PBS and ITVS—accepted Hip Hop’s fair-use claims, based on the Statement’s principles and limitations, for airing on Independent Lens. The cable programmer IFC depended on the same Statement in shaping the policy that guided its decision to coproduce and cablecast This Film Is Not Yet Rated, which includes some 134 fair-used clips from major motion picture companies.
In recent months, several insurers as well have accepted fair-use claims based on the Statement on a case-by-case basis, after learning about the Statement, which dramatically reduces risk. Lawyers such as Los Angeles-based Michael Donaldson have been crucial in the positive education process that is at the core of the best practices model. Now, leading insurance company National Union has made this consideration routine (without of course abandoning the case-by-case consideration that is core to Fair Use).
Several key figures in documentary film were crucial in spreading the word. Simon Kilmurry, the CEO of public TV series, P.O.V., which showcases leading social documentaries and one of the Statement’s earliest champions, introduced legal scholar Peter Jaszi, who co-coordinated the Statement with the Center for Social Media, to a leading insurance broker, Debra Kozee (C & S International Insurance Brokers). Kozee took the Statement to insurers, and Paul Paray at AIG saw the opportunity to offer the best possible coverage to documentarians by extending coverage for Fair Use—when the claims are backed by an opinion letter from an attorney experienced in copyright law attesting to the fact that use of the material falls within the doctrine of Fair Use. "Heretofore the use of such material was excluded from coverage except in extremely rare circumstances for a much higher than standard premium," Kozee noted.
Fair Use will always be a case-by-case decision, but knowing that broadcasters, cablecasters and insurers have now all honored the collective judgment of the creative community of documentary filmmakers about what is fair and reasonable helps documentarians use the rights they have wisely and well.