QUESTION OF THE MONTH: Incidental Use

QUESTION:

Dear CSM:

I'm editing a documentary about an aspiring young football player. An interview occurs in a hotel room, where he happens to be watching an NFL game on broadcast TV. In referencing the Documentary Filmmaker's Statement of Best Practices in Fair Use--in particular the section about capturing copyrighted media in the process of filming something else and the section on when the captured content doesn't constitute the scene's primary focus of interest—I feel comfortable that when the TV and the game appear in the background, it's Fair Use. But when the filmmaker captured close-up material of the copyrighted game and wants to use this while we hear the subject talking, is this still "Fair Use?"

Thanks,

Ted

ANSWER:

Dear Ted,



Your question is a good one. Does the close up have a logic and reason within the documentary scene? Does it explain something about what is going on? Is what the guy is saying related in some way or does the imagery help us understand anything about the scene or character?

OR is the imagery used in order to perform the same function as the original material--to entertain audiences with football? If it's the latter, it's likely that you haven't "transformed" the use.

OR is the imagery being used as an aesthetic device, perhaps as a transitional element, disconnected from the documented moment? In that case, filmmakers said in the Statement that it's no longer really incidentally captured, it's no longer an unavoidable part of the scene, and it is moving on its way out of being considered "Fair Use."

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