QUESTION OF THE MONTH: It's Fair Use in my film, but what about on the film website?

QUESTION:

Dear Center for Social Media,

I'm working on a documentary about the history of American journalism--particularly the points in history when journalists were able to use their profession to uncover the truth, or "speak truth to power," like Watergate. We've interviewed a number of journalists for the film, but we're also making substantial use of newsreel footage and archival photographs. I've read the Documentary Filmmakers Statement of Best Practices in Fair Use [2], and it's been really helpful. I feel like I have a good understanding of where I can claim Fair Use in the film, but I still have a question. We are also building a website where we'd like to use some of the archival photographs from these key moments--people can click on them and watch web shorts and learn more about the historic event. I'm pretty sure the way we want to use these photographs in the film will be "transformative," and will fit within the Fair Use categories, but I'm less sure if there's any way we can claim Fair Use for using these photographs on our website. Do you have any thoughts or guidance on this? Also, if it turns out that the way we want to use them for the website is NOT Fair Use, but how we're using them in the film IS, how do we deal with licensing? Can we just pay for the one use (i.e., on the website), and then continue to use them--under Fair Use--freely for the film?

Thanks,

Margaret

ANSWER:

Thank you Margaret, for reading the Documentary Filmmakers' Statement so closely! You need to ask yourself the same kinds of questions about your website material as you did about your transformative use of material for the film. The medium--film, book, website--doesn't change the logic of Fair Use. You may be helped in practicing that logic as well by reading the Code of Best Practices in Fair Use for Media Literacy Education [3]. Media literacy educators often face the challenge of how to contextualize adequately their use of copyrighted material on websites.

Center for Social Media