Fair Use question about access to footage

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Due to the overwhelming number of inquires about our work on Fair Use and the Statement of Best Practices, we have compiled a list of our most frequently asked questions. In addition, we hope to share a new question with you every month via our Fair Use blog. This month's question is about Fair Use and access to footage.

Q: Mark asks, "I'm under the impression--perhaps no longer accurate -that if I record footage, say an opponent's spot or news footage off the air, in my house I can use that tape/footage in my campaigns. But if I come by the footage from actual station masters/dubs/or licensing/stock companies it is no longer Fair Use and I must seek permission. Is that still the case?"

A: Mark, we think this is an issue of whether you have access to material you want to use that isn't controlled by the copyright owner. If there is only one source ("sole source"), then that person de facto controls the terms of its use. You probably can't get the material from them without signing a contract or making a promise that you will pay them if you use it. And that contract overrides your Fair Use rights. But if you can get it another way (in your case taping it yourself, although we suppose you could also get it by having your candidate give it to you, getting a friend in the opponent's camp to give you a copy etc.) then you can exercise your rights if you believe you are entitled to them. In the examples you are giving, of political campaigning, we imagine that typically you're quoting a campaign ad to counter it or otherwise discredit it or to demonstrate that so-and-so actually said such-and-such. In all these cases, filmmakers would agree with you that these are Fair Uses.

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