QUESTION OF THE MONTH: Do Cable and the Networks Even Accept Fair Use?

QUESTION

Dear CSM:

If a filmmaker claims Fair Use for some material, what is the current state of affairs at the various broadcast/cable/satellite outfits on actually airing something with copyrighted material that has not been licensed? (i.e., can you actually get it on the air at PBS, ABC, NBC, CBS, HBO, History Channel, etc.?)

Thanks,

Rick

ANSWER

Dear Rick:

Can you actually get it on the air at PBS, ABC, NBC, CBS, HBO, History Channel, etc.? There actually has been broad acceptance of the Statement of Best Practices for Fair Use in Documentary Film throughout the industry. PBS now uses it, as do stations (e.g. WGBH--check out WGBH uses on our website, where you can find actual clips of successful Fair Use) and ITVS. Some cablecasters openly adopted it into practice (e.g. IFC), and some de facto use it (e.g. HBO in Trials of Darryl Hunt). Some cablecasters have quietly used Fair Use where convenient without discussing it for a long time. A&E has been particularly judicious in employing Fair Use. All the networks use Fair Use daily in their news broadcast. And we can also point to the success the Statement has had with insurers, the majority of which accept Fair Use claims since the Statement appeared. However, there are still many folks in the business who have not yet seen or heard of the Statement, and every day brings new news of adoption. So it's a moving target.

What does this mean for you? It means that you and your staff and your interns are all potentially active agents for change--to educate yourselves and the people you do business with about the useability of Fair Use within appropriate limits--limits that are just as helpful to large copyright holders as to new users, because they lower friction in business relationships without cutting into profit. It's been a long fifteen years in which anxiety has needlessly been ratcheted up, and the Statement allows everyone to get back to a far more reasonable place.

--The Center for Social Media

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