European Filmmakers and Fair Use

As U.S. documentary filmmakers have increasingly benefited from the copyright doctrine of Fair Use, European documentary filmmakers have cast about for how to similarly benefit. The trouble is, instead of the broad and flexible Fair Use doctrine, the many European nations instead have a variety of specific and inflexible exceptions and limitations. But even so, in November Europeans have figured out some first steps, showcased at the annual meeting of the International Documentary Film Festival in Amsterdam.

With the assistance of the Center and the Washington College of Law, they participated in a European Union inquiry on exceptions and limitations on copyright ownership. Filmmakers at meetings of the Europe-wide filmmakers’ organization European Documentary Network and public service broadcasters at the European Broadcasting Union signed a group letter. Some committed to commenting individually as well.

The influence of U.S. filmmakers’ example was evident in other ways as well. At IDFA’s many parties, Fair Use references dotted conversation. One festival film was Vikram Jayanti’s, The Agony and Ecstasy of Phil Spector, an intimate interview with the mercurial and litigious musical legend on the occasion of his murder trial. The film freely quotes Spector’s music throughout for, among other reasons, commentary on Spector’s psychology. The British Broadcasting Company’s Karen O’Connor told me that the standard-setting BBC accepted Jayanti’s use as acceptable quotation and aired the program last month. Jayanti and other British producers had been emboldened to search for limitations and exceptions in British law by comparison with the U.S. example. The BBC’s decision sets a powerful precedent.

Another fun ticket was Carmen Meets Borat, a close-up look at the terms of daily life in the village where the comedy Borat was filmed. It not only quotes copyrighted material without permission or payment, but as a reminder and teachable moment the credits include a declaration that the director has employed Fair Use. "I thought of it because I had seen what you did in the U.S," Dutch producer Pieter van Huystee told me. In fact, he used exceptions specific to European laws, but wanted to invoke the U.S. term for its familiarity. The BBC also accepted his claims.