Fair Use Question of the Month: If I asked and they said no, can it still be fair use?

QUESTION:

Dear Center for Social Media,

I'm a new independent filmmaker from the US producing a documentary (for commercial release) on the Gaia theory - the idea that the earth is a self-regulating organism. I'm in the process of learning about fair use laws for documentary filmmakers, because I wish to use some footage (approx 1min) from the movie Avatar in my documentary under the context that Gaia is similar to the conscious planet Pandora as depicted in Avatar. I have read your Best Practices in Fair Use paper [2] and concluded that I should be OK to use the footage in this context. So in good faith I wrote to Fox (who distribute the film) and received a reply denying me permission or license to use a portion of Avatar. Can you please offer me some advice on this - does this mean I cannot go ahead and use the footage under fair use?

Kind regards,

Peter

ANSWER:

Dear Peter

Thanks for writing us! It sounds to me like you've done exactly what you needed to in good faith. So if you've read the Statement of Best Practices on Fair Use in Documentary Film [2] and you are confident that the way you want to use the Avatar footage IS fair use, then it actually doesn't matter that Fox said no. Really, you're just giving them the courtesy of a heads up that you plan on using the material, but their permission isn't necessary. Obviously, it would have been great if they'd said "you're right, that does sound like fair use, go ahead and use the footage," but the beautiful thing about fair use is that it protects freedom of speech (in this case, your freedom to make an argument using their footage) even if the copyright holder says no. So as long as you can find a way to get access to the material, and you feel confident that your use of the material is fair use, go ahead and use it anyway.

Center for Social Media