Copyright law grants to the creator of a protected work a set of exclusive rights that collectively convey full and nearly absolute control over the copyrighted materials. Another party may use those materials only with the owner's permission, which is generally given through a license, or by outright buying the copyrighted materials.
But there is an exception to that rule. In some instances, another party can take portions--or sometimes all--of an entire work without asking for permission. The doctrine that allows this to happen is known as fair use, and it's central to many film projects, particularly in the documentary space.
The four prongs that Congress embedded in legislation that are meant to guide judicial determinations of whether something qualifies for the fair use exception are as follows:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work; 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. the effect of the use upon the potential market for or value of the copyrighted work.
On a case by case basis, taking into account the unique details of each situation, judges use those guidelines to determine whether something qualifies for the fair use exception.
There are no short cuts, no magical formulae, and there is no lawyer in the country who has devised a trick that can convert anything and everything into fair use. Each instance has to qualify according to existing jurisprudence.
Sometimes I hear people say that 15 seconds are always OK, or 30 seconds are always OK, or that cultural references are always OK, and so on. Those rules don't exist. As courts have repeatedly emphasized, there is no such thing as a brightline rule when it comes to fair use. The doctrine is very fact specific, and its application varies with context. That approach makes it somewhat unpredictable, which is why fair use requires legal review by attorneys who have expertise in this space, but, importantly, doctrinal flexibility means that fair use is elastic, and can accommodate a lot of different scenarios.
Some generally accepted uses are criticism, which includes parody (since parody usually exposes something about the original), commentary, education, and news reporting. But it's critical to keep in mind that none of those uses will automatically qualify something for fair use. Just because something is newsworthy, for example, does not mean that using the protected materials will qualify for the fair use exception. Each use has to meet fixed legal standards.
Some key questions to keep in mind when determining whether something might be fair use: 1. Why are you using the material? Is it for one of the purposes listed above, or is it because it will make your project more valuable commercially? 2. Are you adding some new meaning to the original material, or giving the original material a new purpose? 3. How much are you taking? Are you taking only as much as you need to in order to make your point, illustrate your argument, and so on? Or are you taking more than that, and effectively using the protected materials to make your film look and sound better? 4. If everyone did what you are doing, would copyright owners be economically damaged? If everyone could take news clips just because they contain news, for example, would the licensing market for those kinds of clips be entirely eradicated or substantially eroded?
There is a lot to unpack in a fair use analysis, and, as many lawyers and legal scholars have repeatedly pointed out, it's not an easy process, but the doctrine gives filmmakers a very powerful tool that, if leveraged wisely, can considerably enrich film projects.
