The Ultimate Guide to Fair Use and Copyrights for Filmmakers
Disclaimer: What you’re about to read is a compendium on fair use and copyrights pertaining to film and video production. I provide plenty of links and references to support the information. But it should not replace consulting an attorney with regard to your particular situation.
What are copyrights and trademarks?
Simply put, a copyright protects literary and artistic assets such as books, movies, videos, plays songs, photographs, etc. It should not be confused with a trademark which is a form of protection geared towards words and symbols. Trademarks are predominantly for the protection of a company’s intellectual property surrounding its brands and logos.
Unless explicitly expressed, whoever creates an image (photo or video), owns the copyright to that image. As long as that image does not infringe on another pre-existing copyright. That is why it is so important for production companies to have contracts in place with both clients and subcontractors with regards to the videos or photographs they create.
What is Fair Use?
The laws and regulations around fair use and copyrights are among the most confusing aspects of filmmaking. When can you use a song, photo, or movie clip, etc., and be within the bounds of the law? And what about all those thousands of videos uploaded to YouTube and Vimeo every week? How are they able to get away with what appear to be copyrights violations?
According to the U.S. Copyright Office, Fair Use is “a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:
- Purpose and character of the use. Including whether the use is of a commercial nature or is for nonprofit educational purposes
- Nature of the copyrighted work (using parts of something more creative in nature, like a movie or book, has a weaker “fair use” argument than news footage or a technical article).
- Amount and substantiality of the portion used in relation to the copyrighted work as a whole (i.e. do you really need 3 whole minutes of “Avengers: Age of Ultron” in that video essay about superhero movies? Or will 3 seconds do?)
- Effect of the use upon the potential market for or value of the copyrighted work (will the use hurt the original copyright holder’s ability to make money from the work that was copied?).
The thing that makes fair use so difficult is that it’s not a clear-cut law. It’s relatively open to interpretation. Unless you’re actually sued or challenged, you may never know 100% whether your use adheres to the law or not. In court, it’s the ruling judge’s discretion based on his or her own interpretation of the law.
These four factors boil down into two important questions:
First, are you repurposing the material for use in a way other than its original purpose? That is what it means for a work to be transformative. This is a common term you will hear in discussions of fair use. A classic example would be the use of a movie clip within an educational context. A clip from Saving Private Ryan’s opening scene in a video essay on how Spielberg uses cinema verité is transformative. You’re taking the original media (a piece of entertainment) and using it for education.
Is it fair?
However, if you took those same clips and dropped them into your WWII short film for the express purpose of being a battle scene, well, in the words of Andrew Garfield to Jesse Eisenberg’s in The Social Network, “Lawyer up!”
The second question to ask is, “If your use is transformative, are you using the appropriate amount for that transformative purpose?” Usually, this amount is a small percentage of the whole. In the above example of using clips from Saving Private Ryan, you could probably justify as much as 30 seconds to adequately show use of cinema verité. However, if you uploaded the entire movie to your “education channel,” and you only had a few random voice-over commentaries about color grading or cinematography, that would be a harder fair use argument to support.
The fab four
Four uses of copyrighted material are particularly addressed and often protected by fair use: commentary, criticism, education, and news. So satires, parodies, video essays, documentaries, etc., will usually be protected by fair use. However, your interpretation of “education” my not be the same as a judge’s. Lots of videos are uploaded to YouTube with a disclaimer like “This video is uploaded for educational purposes.”
But it’s just the full video with no transformative aspect. (Sorry buddy, that doesn’t cut it.)
Remember, fair use is the kind of law wherein a transgression isn’t definitively determined until after the fact (i.e. you get sued). It’s not like running a red light or shooting a person in cold blood. These are acts that you know are illegal beforehand. So invoking “fair use,” leaves you open to litigation if there are no expressed licenses in place. That’s just a cold hard truth.
With that said, you don’t have to be gun-shy about it. There are resources and past precedents in place wherein you can feel confident in your application of fair use. We’ll get to those later.
No discussion of copyrights and fair use in filmmaking would be complete without addressing to some extent the Digital Millennium Copyright Act (DMCA). This was a law signed by President Bill Clinton on October 12, 1998 that implements two treaties by the World Intellectual Property Organization (WIPO). The law is detailed and contains five titles. In short, and paraphrasing Wikipedia speak, “It criminalizes production and dissemination of technology, devices, or services intended to circumvent digital rights management (DRM).”
These are the technologies used to access copyrighted digital media such as computer programs, movies, etc. A key aspect is this. DMCA is the limitation of liability for internet companies with regards to copyrighted works distributed on the internet. In other words, sites like YouTube and Vimeo aren’t liable for violations by people who use their services. As long as they respond immediately to copyright holders’ requests for action against violators. We’ll address this later as well.
Documentary Filmmakers’ Statement of Best Practices
I’ve studied and written about the topic of fair use a number of times in the past. A year ago I had the opportunity to interview Patricia (“Pat”) Aufderheide, one of the co-founders for the Center for Media and Social Impact. This is a non-profit organization, based in Washington D.C. It fights for universal copyright and fair use standards for films, videos, photographs, and even podcasts and radio.
My interview was part 2 of a 2-part podcast series on Fair Use in Filmmaking. (You can hear my full interview with her here). CMSI has worked with legal scholars and media professionals to create a series of PDFs. These aim to standardize fair usage and provide a centralized resource for media makers. One of the documents is The Documentary Filmmakers’ Statement of Best Practices in Fair Use. Pat specifically worked with one of the world’s most renowned experts on fair use, Peter Jaszi, to put this document together.
The primary impetus for Pat and Peter creating this document (and leading the research to create it) was their discovery of the number of documentary filmmakers who were avoiding the usage of material they believed would put them at risk. Some recurring refrains from documentary filmmakers included: don’t cover any topics related to popular music; don’t cover any politics that would require you to use news footage; don’t cover anything related to popular culture; etc.
All of these topics would require huge clearance budgets, some even greater than the budgets of the entire films themselves. As Pat puts it, “Filmmakers aren’t waiting for people to censor them. They’re just going ahead and doing it to themselves.”
Based on these findings, Pat and Peter got funding from the Rockefeller and MacArthur Foundations. This was used to fund the extended research and creation of the statement of best practices.
The beauty of the statement of best practices is that it was created in conjunction with working feature film documentary filmmakers and the world’s leading legal scholars, to define, in simple words, what kinds of uses of copyright works fall under fair use. I used and referenced it in the making of my short film documentary “Mixed in America: Little Mixed Sunshine.”
I even had Pat watch the short to get her take on it. The prologue, in particular, contains a number of clips from music videos, old movies, and contemporary movies. Alongside the credits for the clips used, I also reference the Fair Use statement. So technically, could Disney or HBO come after me? Yes. But I followed the guidelines and went the extra mile to credit the clips used. So, I’m not losing any sleep over the “Mouse House” giving me a call.
The Big Five Filmmaking Scenarios
Now I want to address the top five areas where filmmakers run into trouble when using other people’s copyrights. This is based on my discussion with Pat and additional research. I’ll be using a combination of case studies where copyright violators went afoul of the respective copyright holders. And cases where the fair use appears to be categorically intact.
We’re also planning to produce some more articles on the business side of filmmaking.
Trademarks and logos
You know how some reality TV shows blur out the logos on clothes? I used to think that was because the reality show didn’t want to give free advertising to the brand. But that is not the case. It turns out that it’s because of copyrights.
The first part of my aforementioned podcast 2-part interview was with New York documentary filmmaker Salima Koroma. I was interviewing her for something completely different, and I asked her how her morning was going. (You know, regular pre-interview chit chat.) She said it was hectic because she was meeting with her lawyers to go over all the clearances she had to go back and get for her documentary “Bad Rap.” Clearances she had no idea were needed. This pre-interview “small talk” led into a 15+ minute conversation that became its own separate episode.
For example, there’s a shot of Times Square in her film. In the background are all of these logos, musical posters, billboards, etc. According to Salima’s attorneys, they ALL needed clearances.
This seemed crazy to me. If anything seemed to fit under fair use, a 2-second shot of “The Lion King” billboard in the background of a documentary seemed it. Not only was it brief, but it was also incidental. These types of occurrence helped to inspire the work behind the CMSI-created document of best practices. Salima’s attorney’s response was that it’s better to be safe than sorry and get the clearances. Even if something technically fits under “fair use.”
In 2011 I participated in The 48 Hour Film Project. To this day it remains the most challenging and one of the most rewarding filmmaking experiences of my life. One of the rules of the festival was making sure you had clearances for any copyrighted material in your film. Including paintings and photographs.
“But Ron, didn’t you allude to the fact that incidental appearances of copyrights or trademarks might be okay?” That is true. But 1) these weren’t documentaries we’re making, they were narrative pieces of fiction. And 2) the 48HFP distributes the winning films online and internationally. So they’re covering themselves. And in case you’re wondering, no, my film didn’t win. We missed the deadline by 30 minutes because needed to re-export the project.
Stock photos and footage
But it’s just not the use of photographs or paintings as incidental appearances you need to be mindful of. If you’re using them in the video (i.e. you’re dropping the image on your NLE timeline), you need to make sure you have clearances. There are many resources for legally licensing stock photos and footage (e.g. Pond5, Getty Images, Video Blocks, and Shutterstock, to name a few).
There are also plenty of resources to obtain free stock imagery. Sites like Unsplash and StockSnap have utilized Creative Commons Zero licenses. This is the most permissive of the creative commons licenses (see below for the full description of Creative Commons). It’s essentially just one “notch” below the public domain. A CC0 license allows you to use the copyrighted work any way you want. Without the need to even credit the copyright holder. I’ve frequently used Pixabay to find free stock video footage. (Keep in mind, you get what you pay for.)
Movie and television clips
As I mentioned above, I used clips from various movies and TV shows for my short film documentary. Perhaps the most common area where you might see this example of fair use is in video essays. Essayists like Tony Zhou (“Every Frame a Painting”) and Evan Puschak (“Nerdwriter”) garner millions of views from their respective video essays. And they all include movie clips, photographs, television clips, and in some cases, even music.
Yet, YouTube has not invoked DMCA rules to take their videos down. And, on top of that, these guys are making thousands of dollars per video (as of this writing, Tony’s Patreon campaign for “Every Frame a Painting” yields over $7,700 per video).
One of the tests for fair use adherence is whether the copyrighted material is used for commercial gain. It’s clear here that these guys have a commercial benefit from their use. Evan not only makes a few thousand dollars per video from his Patreon, but he also gets corporate sponsorship from companies like Squarespace.
But video essays are the quintessential example of fair use in terms of both education and critical commentary. That is the essence of a video essay. Based on the transformative use, the amount of the copyrighted material used, and the fact that this use is not hurting the commercial viability of the copyright holders, they’re protected.
Now, I cannot say for 100% certain those guys don’t actually have licenses with all parties whose copyrighted works are being used. But, I’m going to go out on a limb and say that a guy from Philly making videos in his living room and earning $3,000 per video has not paid licensing fees to a dozen or so different conglomerates.
I have another perfect example of this usage where I do know for sure the filmmaker did not have license or permission.
Kirby Ferguson is the filmmaker behind “Everything’s a Remix.”
This short film series has garnered millions of views and Kirby has even spoken on the TED stage. Back in 2010 I interviewed him for one of my older podcasts, and I later contacted him about his use of Tarantino movie clips, as well as music usage (where he used parts of famous songs to illustrate, coincidentally, how musicians sample songs). Kirby told me he did not get permission from the studios or labels to use those clips.
You know what he did do? He followed the guidelines of the CMSI’s The Documentary Filmmakers’ Statement of Best Practices in Fair Use. In fact, he was the first person to ever refer me to the work of Pat and the CMSI.
Intellectual Property (or “IP”) is a physically intangible item of value based on ideas, computer code, trademarks, copyrighted stories and characters, etc. For many companies, their IP is their primary product. So, it stands to reason, they go out of their way to protect that IP.
But filmmakers are nerds. (You’re reading an article by a huge one. A nerd that is). And we love our sci-fi and fantasy. Hence the fan film.
YouTube contains tens of thousands of fan films. Media created by fans of a piece of IP wherein they use that IP to make their own films. (Some have jokingly argued that this season of “Game of Thrones” is a glorified “fan film” vs. an adaptation because George R.R. Martin hasn’t finished the final two books in his famous Song of Ice and Fire series upon which the HBO series is based. But, again, don’t get me started.)
Based on my understanding of fair use and copyright law, just about every single instance of a fan film is a copyright violation. They are not necessarily making money from these films; but for the most part, the films are not making any kind of commentary or critique on the IP. They are not transformative in purpose either (i.e. education). They are entertainment for entertainment’s sake, just like the original IP.
Now, some IP holders encourage fan films and allow a vibrant fan film community to flourish. Fan films keep the culture alive and fans excited about the traditional IP. Lucasfilm is a perfect example of that in how they’ve responded to and embraced the “Star Wars” fan film community. (One of the most celebrated “Star Wars” fan films recently was last year’s “Darth Maul – Apprentice” with over 14 million views as of this writing.)
However, some IP holders of sci-fi space stories are not as forgiving.
The Battle of Axanar
Earlier this year, after a legal battle that lasted nearly a year, Paramount Pictures and CBS (the owners of “Star Trek”) won a judgment against Axanar Productions. Axanar had raised over $1 million in crowdfunding to produce a feature-length version of it’s popular short film “Prelude to Axanar.” Axanar claimed fair use. A U.S. district court judge said no.
Axanar and CBS/Paramount eventually reached a settlement whereby Axanar agreed to substantially change the length and content of their film (which naturally put them in a bit of a bind as they raised over a million dollars to make a feature).
What made this case particularly stand out was the fact that there have been “Star Trek” fan films literally for decades. Dating back as early as the 80s. Even Axanar’s original film “Prelude to Axanar” was made with no objection from CBS/Paramount and as of this writing has over 3 million views.
Don’t get them started
What set the studio off, in this case, was the scope of this new project. In addition to the feature-length and the $1 million+ budget, it stars well-known actors like Richard Hatch (Apollo from the original “Battlestar Galactica” and Tom Sarek in the SyFy Channel remake), Gary Graham, and Kate Vernon (also from SyFy’s “BSG”). In the eyes of CBS/Paramount, the feature-length fan film with those production values and cast, was too much. (especially with the new “Star Trek: Discovery” series on the horizon).
Richard Hatch (who sadly passed away this past February) played a Klingon commander in the Axanar series.
The uproar from the fans was huge. Needless to say, they were pissed. The fan community is what kept “Star Trek” alive, going as far back as the 70s. So many saw this lawsuit as an affront on the fan loyalty and devotion to the franchise.
In an effort to support the fan film community and encourage the continued production of fam films, CBS/Paramount created a set of guidelines for future fan film productions. They put limits on things like the amount of money raised (must be less than $50,000), the running time (less than 15 minutes), and that films must star and be produced by amateurs. Many feel that those guidelines are too limiting. Only time will tell how it all plays out.
The Wrath of Kahn
Joseph Kahn is one of the most prolific music video filmmakers on the planet. He is the go-to guy for Taylor Swift. He’s insanely talented and has the attitude to match.
About 2.5 years ago, he and producer Adi Shankar released what some have described as the most epic Power Rangers film ever made. Based on the popular children’s series owned by Saban Entertainment, Kahn and Shankar’s version is dark, gritty, and absolutely NOT FOR KIDS. This is due to sex, graphic violence, drug use, language, dark themes—pretty much everything you can put in a film that makes it NSFW.
The production values are top-notch, from the CGI to the choreography; and even the acting is very good. It too stars well-known actors, namely Katee Sackhoff (yet another SyFy BSG alum), and “Dawson” from the WB hit “Dawson’s Creek”, James Van Der Beek.
A quick response
It did not take long for the short to go viral. Saban, who at the time was in pre-production for a new Power Rangers film (released last year), ordered to have the video removed from Vimeo. Kahn was pissed.
Remember the DMCA I mentioned above? This is where it came into action. Under the regulations of the DMCA, Vimeo was required by law to remove it at the behest of Saban. And they retorted as such to Kahn on Twitter.
They released a formal statement on their blog where they said:
“The video creator feels that the video is covered by Fair Use based on the fact that it is non-commercial and satirical. We agree that an argument for fair use can be made, but the DMCA law does not give content hosts (like Vimeo) permission to disregard a takedown notice simply because of the presence of one or more fair use factors. This is a legal matter between the copyright holder and the video creator.”
Making a case
Kahn and Shankar were making the case that this video falls under Fair Use because they were not making any money from it, and they saw it as a satirical commentary on kids and violence. IMHO, I called B.S. on both, and I think Saban had a strong case against Kahn regarding this film.
- Kahn may not have been paid for the film, but you don’t have to be a Harvard business graduate to know that a film like this, and the publicity it was getting, will be worth more to him long-term than any director fee he would’ve earned. Filmmakers make these kinds of films all the time precisely for the marketing value they bring. All an attorney has to do is add up the press impressions Kahn had gotten on sites like Mashable, i09, HitFlix, and pretty much every major tech, sci-fi and movie website and calculate what ads on those sites would cost to come up with a figure.
- It’s obviously not an educational or “news” item.
- Lastly, I don’t think this kind of film really qualifies as a “commentary” on Power Rangers, or even a parody. It is a serious drama using the characters from the universe. In Kahn’s own words, he made it because he wanted to see a “good” Power Rangers film; not as a critique or commentary. Shankar released a video which gives his reasons why he made it. But the comedic nature of this video clearly shows there was no sincere desire to make a serious commentary about children and violence. At the end of the day, they wanted to make a kick-ass Power Rangers film. And without a doubt, they did.
I loved that Power Rangers “fan film.” It was truly a marvel. But it really wasn’t fair use. As fan fiction, few reach the level of sophistication of the Kahn film. But if that fiction goes against the brand of the art in question, the copyright holder should have the right to have it removed, no matter how annoying or frustrating it might be even to the very fans for which it was made. IMHO, we as artists should actually be defending that right, not fighting against it (as many people did when Vimeo first took it down).
Ultimately Saban and Shankar/Kahn reached an agreement to reinstate the film if a disclaimer was added. I actually think that’s was pretty generous on the side of Saban. (And based on the dismal performance of their official Power Rangers movie, they may want to look into Kahn doing a feature-length version of his fan movie. One that is more kid-friendly, of course).
The last of the big five areas of fair use scenarios for filmmakers I want to cover is music. Oh boy. This will be fun.
No area of confusion on this issue is perhaps more misunderstood than music. You need look no further than the hundreds (if not thousands) of professionally shot wedding videos edited with copyrighted music. Or the countless epic short films on YouTube with Hans Zimmer or Michael Giacchino “scores.” Many novice filmmakers assume that if a video is “not for commercial purposes” and/or if the music was purchased on iTunes, then that clears them or their conscience. Unfortunately, it doesn’t (well, it may clear their conscience, but it definitely doesn’t clear them legally).
Music does indeed fall under fair use, and so your use of it must also fit within the parameters mentioned above. The problem is, most of the use of music in such film and video is a copyright violation. They use someone else’s music, unlicensed, in the manner for which it was originally purposed. There is no transformative use or commentary on the music itself.
In order to legally use music in your film or video, you need two types of licenses: a master (also known as mechanical) use license (controlled by the record label) and a synchronization (or sync) license (controlled by the publisher). The mechanical use license gives you rights to the song from the originator; the sync license gives you the right to the specific version of the song and set it to a film or video. In many cases, the same company represents the publisher and the label. But if they don’t, you’d have to arrange for licenses with each entity separately.
Years ago, The Harry Fox Agency was a centralized resource for getting all the appropriate licenses for use in films. They have since given up managing sync licenses and focus on mechanical use licenses.
Raising the stakes
Within the past 7 years, record companies have raised the stakes when it comes to illegally using their music. Two wedding videographers I know personally had rather high-profile public lawsuits by EMI when wedding videos they produced for celebrities went viral. As most wedding videos do, theirs had copyrighted music. Each settled out of court for amounts in the 5-figure range; that’s A LOT of money for a small wedding filmmaker to shell out. If you are a wedding and event videographer, don’t risk it. Fortunately, there are alternatives to using music illegally.
Music License Alternatives
Unless you have a huge budget, you will not be able to get popular music for that really cool short film or feature film. Thankfully, there is a growing number of sites where you can legally license music from a wide variety genres. Some of these sites even have mainstream popular music.
The length and cost of the license will depend on factors such as the intended audience (wedding, corporate, personal), the size of the audience, and the intended distribution (theatrical, online, DVD/Blu-ray, broadcast). For theatrically-released features, you will typically need to arrange some sort of custom license (which undoubtedly will cost you an arm and a leg).
Royalty-free? Or rights-managed?
The most important thing to keep in mind is that some of these sites have royalty-free licenses, and others have what’s called “rights-managed” licenses.
- Royalty-free is essentially “buy once, use indefinitely.” You can use royalty-free songs in just about all manners of production, for as many productions, for as long as you like. A few of the most popular royalty free sites I’m familiar with include Pond5, PremiumBeat, and AudioJungle. You’ll notice that the rates on these sites can be as little as $12 to $40.
- Rights Managed licenses are more restrictive. They are typically for one song and one production. Whereas royalty-free sites have one price per song, rights-managed sites will change the price based on the license. The same song my cost $60 for use in a wedding video, but $500 if used in a local cable TV commercial, or a corporate promo video for a company with 50 or more employees. The rights managed sites I come across more often are Marmoset Music, Song Freedom (now FyrFly), MusicBed, and Triple Scoop Music.
As an avid podcaster who pretty much does it as a passion project, I don’t have the budget to license music for the episodes I produce. So I’ve turned to a resource that is not only great for music but applicable to all forms of copyrights: creative commons.
Creative Commons is an organization dedicated to providing worldwide licensing for copyright holders who want the ability to freely and easily license their work to others. When you use a copyrighted work under Creative Commons, you agree to one of six types of licenses.
Creative Commons licenses
- Attribution (CC BY): This license lets others distribute, remix, tweak, and build upon the copyright holder’s work, even commercially, as long as they give credit for the original creation.
- Attribution-ShareAlike (CC BY-SA): This license lets others remix, tweak, and build upon the copyright holder’s work, even for commercial purposes, as long as they give credit and license their new creations under the identical terms. All new works will carry the same license, so any derivatives will also allow commercial use. This is the license used by Wikipedia and is recommended for materials that would benefit from incorporating content from Wikipedia and similarly licensed projects.
- Attribution-NoDerivs (CC BY-ND): This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to the copyright holder.
- Attribution-NonCommercial (CC BY-NC): This license lets others remix, tweak, and build upon the copyright holder’s work non-commercially, and although their new works must also acknowledge the copyright holder and be non-commercial, they don’t have to license their derivative works on the same terms.
- Attribution-NonCommercial-ShareAlike (CC BY-NC-SA): This license lets others remix, tweak, and build upon the copyright holder’s work non-commercially, as long as they give credit and license their new creations under the identical terms.
- Attribution-NonCommercial-NoDerivs (CC BY-NC-ND): This license is the most restrictive, only allowing others to download the copyright holder’s works and share them with others as long as they give credit. They can’t change them in any way or use them commercially.
As I mentioned earlier, I use CC music in my podcasts, but I also used it in my documentary short.
Creative Commons does extremely important work. It allows content creators to share and use copyrighted material in a way that is fair and equitable to both the copyright holders and the users of those copyrights. You can learn more about them at CreativeCommons.org.
As a filmmaker (documentary or otherwise) who wants to use other people’s copyrights in your work, there are a number of things you can do to protect yourself:
- Use the Statement of Best Practices: When CMSI did a study two years ago of documentary films over the previous ten years that had implemented the guidelines of fair use outlined in this document, they found the overwhelming majority of them had no problems with broadcasters, insurers, or lawyers.
- Where budgets allow, go ahead and get the clearance. You may recall my recent interview with the editors of HBO’s documentary series “The Defiant Ones”, about the careers of Dr. Dre and Jimmy Iovine. The music licensing budget for that 4-part series was the highest in HBO’s history.
- CC Yourself: when looking for music, photos, or even stock footage for your video needs, if you don’t have the budget, start with Creative Commons sites. You can even start your search directly from the CC Search Engine.
I’ve tried to give you an exhaustive list of resources and case studies related to fair use and copyright usage so that moving forward, you can make informed decisions. But I’m sure there are other resources I may have missed. What are some of your favorite sites for finding and using copyrighted material legally in productions? Please share.