Fair Use Question of the Month: Using Copyrighted Material to Illustrate Historical Moments

QUESTION:

Dear Center for Social Media,

We are working on a documentary series on opera, and why the supply of great singers seems to be drying up. We're conceiving that the series would be similar to the documentary Ballet Russes, with interviews with the singers and footage from their careers.

We in the arts feel that raising standards and keeping alive the arts is important, and we feel it has socially redeeming value. We'd like to be able to include illustrations (videos mostly) from the careers of these singers, but is the fair use doctrine too narrowly conceived to include our use of quotes from old TV shows, for example, the Ed Sullivan Show, to illustrate the work of the singers we are interviewing?

Thanks!

Roberta

ANSWER:

Dear Roberta

I'd like to direct you to the Doc Filmmakers' Statement of Best Practices in Fair Use [2] and particularly to categories two and four. Depending on how exactly you plan to use the TV clips, it's possible that you will be able to argue that you're quoting copyrighted material to illustrate an argument or point that you're making in your documentary. It also could be possible that the best (or only way) to tell a certain story about these opera singers is by using historical footage that you can't otherwise license for a reasonable cost. Again, take a look at categories two and four of the Documentary Filmmakers' Statement, and determine if your intended uses for the third party material fall in line with the principles and limitations set out there. Additionally, look at the examples page [3] that we have up for those categories and hopefully this will be of some use!

Center for Social Media