1. Why is Fair Use critical to documentary film?
Fair Use is critical to documentary film because that medium explores and discusses important social, cultural and historical issues. It is often impossible to discuss these issues effectively without reference to the historical material that illustrates, depicts and documents them. A tremendous amount of that material is under copyright. Accordingly, copyright can present a very significant barrier to the creation of many documentary films. While documentary filmmakers may be able to solve this problem by obtaining permission to use copyrighted material from the copyright owner, this solution is imperfect and often ineffective. First, copyright owners often demand licensing fees that are prohibitively expensive relative to the documentary film budget. Second, the problem is exacerbated where the subject of the film requires extensive use of copyrighted clips due not only to total cost, but the time, effort and expense of tracking down owners and asking for permission in the first place. Finally, copyright owners may refuse permission altogether. A robust and effective Fair Use doctrine allows filmmakers to avoid these problems and makes it possible for documentary filmmakers to take on subjects that would otherwise be difficult or impossible to discuss.
2. What is the Documentary Film Program?
The Documentary Film Program provides filmmakers with information about fair use, access to insurance for liability arising out of copyright litigation, and access to lawyers who will defend copyright claims pro bono or at reduced rates. The Program was created through a collaboration among the Fair Use Project, leading intellectual property attorney Michael Donaldson and Media/Professional, the nation's leading insurer of media risks.
3. Why is the Documentary Film Program important?
In order to show and distribute their films, documentary filmmakers usually need to obtain "errors and omissions" insurance to insure against liability for copyright infringement, defamation, and other media risks. In the past, it has been difficult and expensive, if not simply impossible, for filmmakers to obtain insurance that covers any unlicensed use of copyrighted content. A significant part of this problem has been the fact that Fair Use law can be complicated and difficult to apply. It was therefore difficult and expensive for insurance companies to assess Fair Use issues. In November 2005, the Center for Social Media at Washington Colleges of Law teamed with leading academics and lawyers to create the Documentary Filmmakers' Statement Of Best Practices In Fair Use. These Best Practices synthesized established principles of Fair Use into an understandable set of guidelines that are easy for filmmakers to apply. Media/Professional, the nation's leading insurer of media risks, has recognized Best Practices as an effective guide to established Fair Use principles. In conjunction with the Documentary Film Program, Media/Professional now offers errors and omissions insurance for filmmakers who make use of unlicensed copyrighted material, but comply with Best Practices. Accordingly, filmmakers now have access to affordable insurance that permits them to exercise their Fair Use rights. The Fair Use Project reviews films for compliance with Best Practices and Fair Use principles free of charge. Once certified, the filmmaker will have access to errors and omissions insurance that covers unlicensed material. In certain instances, the Fair Use Project will go a step further and provide pro bono defense of copyright infringement claims for certain films. By providing these services, the Fair Use Project helps filmmakers exercise the full extent of their fair use rights. This will allow filmmakers to exercise the full extent of their rights under Fair Use because they will have lawyers in place to defend them should a dispute arise, and insurance in place to protect them should they lose.
4. How does the Documentary Film Program work?
A documentary filmmaker who agrees to, and does, comply with Best Practices can submit a rough cut of the film to the Fair use Project, along with a detailed clip log of all copyrighted material used without permission. If the film is accepted into the Program, the Fair Use Project or other Approved Counsel participating in the Program will review the accepted film, and determine whether, in the opinion of counsel, the film complies with Best Practices. Once compliance is certified, the filmmaker will have access to the favorable errors and omissions insurance offered by Media/Professional. In addition, the Fair Use Project may commit to providing a pro bono defense to copyright claims arising out of the film's use of copyrighted material under Fair Use. If the Fair Use Project does not commit to providing a pro bono defense to copyright claims, other Approved Counsel participating in the Program may commit to providing that defense at a reduced hourly rate.
5. How do I submit my film?
The following materials are required:
a. Two copies of the film on DVD with running time stamp
b. A detailed clip log that includes a separate entry for each instance where unlicensed copyrighted material appears in the film. For each entry, the clip log must contain ALL of the information called for by the sample clip log available here.
c. A cover letter explaining where you are in the production process, what if any distribution you have received, what assistance you require, and any other information you think would be pertinent. Please be sure to date the cover letter and include your email address, telephone number and mailing address.
d. A statement, which may be separate or incorporated into the cover letter, explaining why you require free legal services. The statement should describe how and to what extent the film is funded and should describe the film’s total budget for legal services. Your ability or inability to pay for legal advice regarding fair use issues will be one among many factors that we consider, and will not be the deciding factor in whether we accept or reject the film.
Please send these materials to:
Stanford Law School
Center for Internet & Society
559 Nathan Abbot Way
Stanford, CA 94305-8610
6. When should I submit my film?
In order to participate in the program, documentary filmmakers must submit films late enough in the production process that we have a good idea what the final film will look like, but early enough that edits can be made to the film as necessary to comply with Best Practices.
7. Does the Documentary Film Program help with clearance?
No. We do not offer any assistance in obtaining permission to use copyrighted material from the copyright holder, but we can refer you to attorneys who will do so on a paying basis.
8. Are there other legal resources for documentary filmmakers?
Yes. The following organizations provide helpful information for documentary filmmakers.
- International Documentary Association
- Center for Social Media
- The Fair Use Network
- Public Knowledge's Fair Use Resources
- Stanford University Libraries Copyright and Fair Use Resources
- Cornell Law School Copyright Law Materials
- Radford University's Copyright and Fair Use Links
- United States Copyright Office