By Jessica Mickelsen
The independent documentary filmmaker has the difficult task of balancing a modest budget with the high costs associated with research and development, production, and distribution of films. Many independent documentary filmmakers lack the resources to employ staff to help with the challenging and time-consuming task of, among other things, clearing intellectual property rights. Consequently, many of these filmmakers end up performing this burdensome task themselves. Observance of intellectual property rights is necessary because failure to guarantee clearance may compromise the documentary's broadest possible distribution. To help relieve some of the attendant burdens and potential expenses that could incur for failure to comply with intellectual property clearance, the filmmaker should thoroughly and scrupulously explore available clearance alternatives. Three such alternatives on which this memo will focus are copyright clearance alternatives: fair use, the public domain, and the Creative Commons.
Fair use is an affirmative defense to a claim of copyright infringement. One who invokes the defense admits to using another's copyrighted work but claims the use is not an infringement because it is "fair use." The burden of proof falls on the person asserting the defense, such that the person or entity that infringes a work has the responsibility of proving that the use was fair. Although fair use is an important alternative to copyright clearance, the filmmaker should approach it with caution and only on the basis of knowledgeable and preferably legal advice as outcomes can be inconsistent and vary between jurisdictions. That being said, there is a basic definition and test to help the filmmaker better understand this option.
Fair use does not have one definition, but rather is decided on the facts of each case. As an equitable rule of reason, no clear definition is possible. One court has, however, come up with a workable definition that may be helpful to understand this defense. The 2nd Circuit defines fair use as a privilege conferred upon non-copyright owners "to use . . . copyrighted material in a reasonable manner without [the owner's] consent, notwithstanding the monopoly granted to the [copyright] owner." While this definition does not make clear what constitutes "a reasonable manner," examples of works that are fair use and a four-part test exist to help clarify its meaning.
Examples of activities that constitute fair use can be found at page 24 of the Register's 1961 Report and include:
"Quotation of excerpts in a review of criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author's observations; use in parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a teacher or student of a small part of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, or a work located in the scene of an event being reported."
The Copyright Act codifies a four-part test for courts to consider when determining fair use on a case-by-case basis. Keep in mind that the following test is not determinative of whether one will prevail, but acts merely as an aid to help guide a court's decision. Ultimately, the decision is left to the judge's discretion:
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
To address the first factor, the main question of inquiry is whether the new work replaces the original copyrighted work or adds something new to it. Courts are more likely to prefer the fair use defense in the latter scenario; in other words, when the work is "transformative" in nature. A transformative work is an original work of authorship that furthers the purpose of copyright law: to promote science and the useful arts. When determining whether use of a copyrighted work may be fair use, always keep in mind this purpose as courts are continually trying to advance that goal.
The second part of the clause, whether the work is for a commercial or nonprofit use, is another factor to weigh in the "purpose" inquiry. In terms of motion pictures, this factor is generally favorable to those, such as documentary filmmakers, who create non-commercial films in the public interest, though this is not always the case. The filmmaker who creates an educational or nonprofit film that infringes another's copyright may still lose a fair use defense. Likewise, a new creation that is for-profit or commercial does not necessarily preclude the filmmaker from successfully invoking the defense. As a general rule, however, those who create works in the public interest have an easier time arguing this defense.
The second factor to consider is the nature of the copyrighted work. Fair use is easiest to establish when the new work uses segments of a copyrighted work that are factual or informational, rather than fictional or creative. In other words, the more creative the original copyrighted work, the harder it will be to establish a fair use defense because copyright protection for the original work will be much greater. However, this is not always the case. Parodies are a common example of work that may overcome the great protection accorded fictional or creative works. To the contrary, newsworthy television broadcasts, which are generally informational, do not always create a presumption of fair use, though this is generally only the case when the broadcast is meant for commercial purposes. Whether the work is published or unpublished should also be taken into account. While a finding of fair use is possible in either scenario, an unpublished work may nevertheless make a claim of fair use harder to maintain.
The third factor to determine is the amount and substantiality of the copyrighted portion used in relation to the copyrighted work as a whole. As a general rule, if the new work does not use "a significant percentage" of the original work or portions that are "essentially the heart of" the original work, the use is probably fair. Examples of works that were upheld as fair use include:
use of less than 1% of a 108 minute film for purposes of a "newsworthy" obituary; use of 9-14 film clips comprising between 0.7-2.1% of the copyrighted film for use in a television documentary; and use of "an average of 26 seconds" from a copyrighted work to make three documentary films.
Examples of works that were not fair use include:
use of less than 8% of a 28 minute film for a network telecast during the Olympics; the use of 105 seconds of an 80 minute copyrighted film, 225 seconds of a 1 hour film, 85 seconds of a 72 minute film, 55 seconds from an 89 minute film, and 75 seconds from a 72 minute film; 15 seconds of a full performance shown on a nightly news program; and short "clips" of copyrighted footage of a plane crash.
An alternative test that some courts use is whether "the amount and substantiality of the portion used in relation to the copyrighted work as a whole . . . are reasonable in relation to the purpose of the copying." A court will assess whether one's justifications for using the copyrighted work are persuasive when viewed in the context of the purpose of the copying. For instance, a court would likely find that use of historical footage from the Battle of Midway for the purpose of creating a non-profit documentary film a more persuasive justification for failure to obtain copyright clearance than use of the footage for the purpose of creating a commercial film, such as "Midway." Accordingly, this alternative has the potential to be used in cases involving broadcasting works, though it was not applied in the cases mentioned above. The filmmaker should be aware of both tests when using footage from a copyrighted work.
The final factor is the effect of the use upon the potential market. To determine the effect, courts examine "whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market" for the copyright owner, including "harm to the market for derivative works." One court rejected a television network's fair use defense when the network aired portions of the copyright owner's work during the Olympics. The court reasoned that because the network had exclusive rights to broadcast the Olympics, the copyright owner was deprived of the potential for compensation from "an extremely significant market." Another court found that use of between 41 second and 2 minute segments of a copyright owner's film for a television documentary did not "undercut the market" for the subsequent release of the copyright owner's film and two music videos. An additional court found that use of clips from a copyright owner's film to create an obituary for an actor in the film were "too few, too short, and too small in relation to the whole" to undercut the market for the film.
The best case scenario for the independent documentary filmmaker is therefore to create an informational, transformative work using segments of a copyrighted work that are neither substantial, nor taken from the "heart" of the work, and would not substantially harm the copyright owner's potential market for his or her work.
There are two main problems with using the fair use defense that the documentary filmmaker should be aware of: (1) relying on the defense could lead to costly litigation and (2) the defense is not always reliable. First, use of the defense generally means that one is involved in litigation. The defense is used once one has made use of another's work and the copyright holder alleges copyright infringement of that work. Consequently, whether the defense works or not, the threatened party will almost always end up incurring attorney fees and/or litigation costs. Second, the defense generally depends on the judge and jurisdiction in which one invokes it. As we saw above, results are not always consistent and, therefore, what may constitute fair use in one court will not in another.
An easier and more efficient option for the independent documentary filmmaker is to use works from the public domain whenever possible. When this is not possible, however, the filmmaker should consult an attorney or another specialist who is knowledgeable on the subject to determine whether one's use is likely fair use.
The public domain is an amorphous concept that is sometimes referred to as a place where work is "uncopyrightable" or "nonprotectible." The idea is that works in the public domain are "free for all to use and build upon." One author has defined the public domain as "a sphere in which contents are free from intellectual property rights." This definition holds true for the "copyright" public domain, though it does not necessarily encompass all other ways in which a work may be protected, such as through the state law of "unfair competition" or its federal counterpart, the trademark-based Lanham Act. As of June 2, 2003, however, the United States Supreme Court decided a case that may make this distinction obsolete. In Dastar Corp. v. Twentieth Century Fox Film Corp., the Supreme Court found that creators who appropriate works from the public domain no longer have to credit the author of the public domain work. Previously, unfair competition and the Lanham Act allowed authors with works in the public domain to sue if their work was left unaccredited. Because this liability risk no longer poses a threat to creators, unfair competition and the Lanham Act are less likely to be interposed to prevent or penalize use of a work from the public domain. Filmmakers may now proceed with greater confidence that works from the "copyright" public domain are truly "free for all to use."
Works are in the public domain when copyrights expire or when they do not qualify for copyright protection. Intentionally placing work in the public domain, however, can be more difficult. Since 1976, registration with the Copyright Office is no longer mandatory for a work to be copyright protected. Today, all works are automatically protected by copyright upon creation, regardless of the author's desire to protect his or her work. Those who do not want a work copyrighted must not only have an intent to abandon it, but must also act overtly on that intent to dispossess their right. What constitutes an overt act, however, is not entirely clear. Before 1978, one could merely fail to renew their copyright to abandon their work. Before 1988, one could fail to include a notice of copyright on their work to abandon it. With the elimination of these two options, overtly placing work in the public domain has become more difficult, though not impossible. New ways are being developed to make the task of placing work in the public domain easier. Before discussing one of these new innovations, this memo will first provide examples of works that are always in the public domain and useful ways to search for works that may be in the public domain.
The following works that do not qualify for copyright protection are always in the public domain: (1) government works, (2) works that are not "fixed in a tangible medium of expression," and (3) works that are unoriginal. Other works that are in the public domain include but are not limited to:
"Blank forms, such as time cards, graph paper, account books, diaries, bank checks, scorecards, address books, report forms, order forms and the like, which are designed for recording information and do not in themselves convey information; [s]tandard calendars, height and weight charts, tape measures and rulers, schedules of sporting events, and lists or tables taken from public documents or other common sources."
Additionally, older works, such as motion pictures, that were published on or before 1922 are in the public domain. For motion pictures, "publication" includes the release of movies or the general making available of release prints. Any type of factual data, such as "scientific [data], historical [data], biographical [data], and news of the day," will, moreover, be in the public domain. Be aware, however, that factual compilations are copyrightable if they contain the "requisite originality" required by copyright law. For example, a "directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement." Finally, keep in mind that one who appropriates information from the public domain may copyright the finished project, which includes derivative works of art and, in some cases, collages.
There are some common ways to determine whether a work is copyright protected. The Internet provides such means, though one should always seek professional assistance, preferably legal, to conduct these searches because results are not always determinative of whether a work is protected. For example, the Copyright Office has a search engine on its website that allows one to search for registered, copyrighted works. One can not, however, assume that a work is in the public domain merely because the work is absent from the Copyright Office's database. Because works are automatically protected by copyright and registration of works with the Copyright Office is no longer mandatory, protected works may very well be absent from the Office's database. And the Copyright Office's website does not provide users with information on the status of absent works. The Copyright Office is really only a reliable means of finding works in the public domain that were published on or before January 1, 1978 and would have been eligible for renewal before 1992 when renewal for pre-1978 works became automatic. If, after a meticulous search, these works are absent from the database, they are guaranteed to be in the public domain.
Similar to fair use, use of material in the public domain as a copyright alternative should be approached with caution and only with legal or professional assistance. When this is not possible, however, the independent documentary filmmaker should look to the Creative Commons as a way to find work to use in his or her own film that is certain to be in the public domain. Unlike the Copyright Office, the Commons provides an easy way to find works guaranteed to be in the public domain, thus allowing one to avoid obtaining copyright clearance.
The Creative Commons is an Internet-based alternative to copyright protection that is best used as a means to search for works in the public domain to use in one's own work or to donate works to the public domain for free use or use with limitations. The Commons provides a good alternative for those who are looking to complement their own work with work from the public domain because the work is guaranteed to be in the public domain unless stated otherwise. The Commons, moreover, creates an easy way to insert works into the public domain or, alternatively, make some uses available upon conditions without relinquishing control over the work. The Commons offers numerous licenses with restrictions to fit one's needs. For example, a filmmaker could get an "Attribution-NoDerivs-NonCommercial 1.0" license, which would allow the filmmaker to make his or her work available to the public for noncommercial uses "to copy, distribute, display, and perform the work" while restricting commercial uses unless one gets the filmmaker's permission. Although these possibilities pose a good alternative for many, the Commons has its drawbacks.
One drawback is that few works are currently available through the Commons because of its novelty and potential inconvenience (to be discussed below). The work that is available is few and far between so one must be patient and flexible when using this site. The search engine is, furthermore, underdeveloped, which makes conducting accurate searches somewhat tricky. When a search term is successful, and many times it will not be, the material found may not be what one is looking for. Mastering the search engine is but one hurdle that must be overcome when using the Commons. Once one is successful in a search, a number of steps then have to be taken to figure out exactly what is available for use. This makes the site user-unfriendly.
For instance, when searching the term "history," the Commons directs one to the "Oxford Orphanage Historical Site." After one clicks on this title, the Commons presents a link to the site, where no further direction is given, and lists the chosen license. This historical site has an "Attribution" license. Instead of creating a convenient hyperlink to the Attribution license, one has to search for the license oneself to learn of the terms. Once one finds the license, the terms are readily available and, here, one learns that the Attribution license permits "others to copy, distribute, display, and perform the work" so long as they (the licensees) credit the original author (the licensor) in return. Although this multiple-step process may seem trivial to the computer-savvy user who has time to spare, one who is not familiar with the Commons website or is not an experienced web-user may find the search engine difficult to navigate.
Another drawback of the Commons is inconvenience. Many older copyright holders may distrust the new system or find it less convenient to use than existing systems. They may instead prefer to maintain their work through the Copyright Office or, in the alternative, make their work available by their own means through the Internet. Other copyright holders with work that pre-exists the Commons will not want to go through the hassle of creating a license with the Commons, but will instead continue to rely on protection already available for their work. As such, older or pre-existing works may never reach the Creative Commons. Many Commons' users who seek these works may be frustrated by their non-availability, thus deterring them from using the site in the future. This would, in turn, hinder the development and value of the Commons as an alternative to copyright.
A further trouble spot is that works donated to the public domain through the Creative Commons may still be protected in other countries. A work that is in the public domain in the United States is not necessarily in the public domain in other countries due to international moral rights restrictions to which the United States does not adhere. Thus, although a filmmaker may be able to waive his or her rights in the United States, the Creative Commons does not clarify whether the filmmaker's rights would be waived globally as well. Also, it is not clear whether a license created through the Commons would be binding in other countries, which could cause potential international distribution problems down the road. A brief overview of these international problems is addressed below.
Fair use standards and the public domain differ between countries, making global protection difficult to attain. This section will briefly highlight some of these differences while recognizing that there is no surefire way to guarantee that works protected in the United States will be protected elsewhere. The best way to approach international copyright law is to seek legal counsel to advise one on the law of each country in which one plans to distribute work and secure copyright protection. This section is in no way a comprehensive review of international copyright law, but is meant only as an introduction to issues that one may encounter when dealing with fair use and the public domain in the international arena.
Fair use standards and the public domain are governed by the local copyright law of each country, making nationwide protection difficult to achieve through national licenses, such as the Creative Commons' licenses. The United States has the most generous vision of fair use worldwide. Foreign copyright laws tend to be more protective than the laws of the United States in terms of granting broader rights to copyright holders and using more restrictive fair use and public domain standards. Although international treatises have been developed to create more uniformity in law, national treatment of copyright law will always prevail. For instance, a film developed in the United States that is distributed in France will be judged by French law standards that govern questions pertaining to fair use, the public domain, and copyright expiration. International copyright law can be difficult to understand for both lawyers and non-lawyers alike, which makes seeking expert legal advice especially crucial. That being said, a brief overview of international treatment of the public domain and fair use will be summarized below.
The public domain differs nationwide. Works that do not qualify for copyright protection in the United States may qualify for protection abroad or may be protected by the international law of "moral rights." Examples of works that do not qualify for copyright protection in the United States but qualify abroad are government works which are protected in the United Kingdom and database content which is protected in the European Union. On the contrary, business methods are protected by patents in the United States, but not in the European Union.
"Moral rights" is another source of international protection that does not exist in the United States. Moral rights allow a copyright holder to prevent distortion or mutilation of a work, obtain credit for a work, and determine when and in what form the work will reach the public even after a copyright has been transferred to someone else or rights have been waived. This means that if one waives his or her rights to a work in the United States, the rights are not necessarily waived abroad. For instance, if a filmmaker uses public domain work from the Creative Commons and distributes his or her film abroad, the original author of the public domain work may still be able to sue the filmmaker abroad using the local "moral rights" law of the country in which the work is distributed. Although it is not entirely clear that the Creative Commons will not protect work abroad, one must recognize this risk before proceeding with international distribution of work that uses material from the public domain.
One final precaution before discussing fair use: although material on the Internet may appear to be in the public domain, especially when available without user fees or other restrictions, it may be protected. If unsure as to whether the material is protected, try contacting the phone number or e-mail provided on the site to verify any restrictions on use. This is especially important if the website's domain is outside the United States because the Internet creates new choice of law and jurisdictional issues where the law is yet unresolved.
Between 1986 and 1994, the Uruguay Round of GATT established TRIPS (Trade Related Aspects of Intellectual Property Rights), which is an agreement between member countries that governs public international law. Adopting the fair use test from the Berne Convention, Article 9(2) of the Paris Act, TRIPS incorporates a slightly more restrictive three-part test for member countries than the Berne test. The three-part test can be found under Article 13, Limitations and Exceptions and reads as follows: "Members shall confine limitations or exceptions to exclusive rights to  certain special cases which  do not conflict with a normal exploitation of the work and  do not unreasonably prejudice the legitimate interests of the right holder." Whether the United States' fair use standard lives up to the TRIPS standard is a matter of debate, particularly when dealing with the United States' fair use exception for parodies and newsworthy events, which are, arguably, not covered by TRIPS. This confusion is not made any easier by the fact that each member country has its own national standards and laws that would preempt use of this treaty standard.
With this non-uniformity in international law, protecting copyrights worldwide can be a bit more challenging, though hardly impossible. There are many lawyers who specialize in the field of international intellectual property law and even those who specialize in domestic intellectual property law may be knowledgeable on the subject. Obtaining expert legal counsel that understands how to protect work globally will be extremely beneficial to the filmmaker who seeks an international outlet for his or her work.
The independent, documentary filmmaker will, at some point, have to grapple with the intricate laws of copyright as it comprises nearly every aspect of film creation, from writing to distribution. Fair use and the public domain are especially crucial to understand as they will be the predominant areas of concern for the independent documentary filmmaker: fair use being the filmmaker's best defense against a claim of copyright infringement and the public domain being the filmmaker's best source of copyright-free work. The filmmaker should approach both options with caution and upon the advice of knowledgeable and preferably legal advice. An interesting means of placing material in the public domain or finding work that is guaranteed to be in the public domain is the Creative Commons. Although the Commons has its drawbacks, if approached with patience and open-mindedness, it provides a good hassle-free option to help the independent documentary filmmaker find copyright-free work. Restrictions on fair use and the public domain in the international arena must also be addressed if the filmmaker is seeking an international outlet for his or her work. Because international law can be difficult to understand for both lawyers and non-lawyers alike, obtaining expert legal advice is strongly recommended.