Fair use is enabling more documentaries, and filmmakers are in the lead of making fair use work for creative practice. The latest evidence is one of the films I savored at SXSW, Our Nixon, by Brian Frye and Penny Lane.
The film retells the story of the Nixon years from the inside, mostly using home movies of some of the Watergate folks--H.R. Haldeman, John Erlichman, and Dwight Chapin. It tells the story of a close group of friends in their 30s, giddy with their access to power, exhausted by their 14-hour days, juggling growing families with affairs of state. There are plenty of gee-whiz moments (here I am on the White House lawn!), silly stuff (close-up on the horse poop after the carriage moves out of the White House driveway), and gossip (Henry Kissinger and beautiful women at affairs of state). It's also a parallel-universe view of that time, in which the major problem with the Watergate scandal is the press. The film is unobtrusively presented, non-judgmental but thought-provoking.
And it's laced with fairly used material. The home movies are, because of actions in lawsuits, in the public domain. But the film uses lots of other material, which the filmmakers decided not to clear, because they knew they didn't need to. Penny Lane told me at SXSW, "We just about wore out the Documentary Filmmakers' Statement of Best Practices in Fair Use." Brian Frye told Oakley Anderson-Moore, "We’re using relatively small clips, and we’re using them in a way that comments on the historical record and on how history was written at the time. Those are sort of the core areas that are protected by Fair Use." He also recommended that filmmakers read Reclaiming Fair Use.