Yesterday I finished my draft of my preliminary search results for primary and secondary authority covering the application of the fair use defense to 'borrowed' video clips in documentaries.
As I understand it, the Documentary Film Project (an undertaking of the Fair Use Project) is a project chartered with the goal of compiling authority and arguments to defend filmmakers who produce documentaries using segments of copyrighted works.
My recent task involved a search for authority covering the use of video-clips 'borrowed' from copyrighted works. By 'borrowed', I of course mean used without the permission of the copyright owner.
My search turned up a number of cases in which the defendant tried to defend his/her actions with the doctrine of ‘fair use’. Courts were, generally speaking, receptive to this defense if a specific clip's use served a different purpose than that of the work from which the clip was borrowed AND the use of the clip did not deprive the owner of readily available licensing fees. For example, a clip borrowed from a movie and incorporated into a documentary of the movie's produce would be fair use. In the documentary, the clip functions as an example of the producer’s work, its purpose is to communicate information. By contrast, the film (the original work from which the clip was borrowed) was created with a purpose to entertain. See, e.g., Hofheinz v. AMC Prods. Inc.
147 F. Supp. 2d 127 (E.D.N.Y. 2001).
Some relevant secondary authority was turned up as well. Most interesting is a piece entitled 'DISTRIBUTIVE VALUES IN COPYRIGHT' by Molly Van Houweling. The article addresses the need modify the tests for fair use to address the change in copyright enforcement as a result of cheap and omnipresent distribution technologies. An interesting read I highly recommend.
Our next steps will involve expanding our search to look for cases discussing the inclusion of audio clips into video documentaries.