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Attention, Documentary Filmmakers: 4 Things to Understand About Fair Use

Attention, Documentary Filmmakers: 4 Things to Understand About Fair Use

DOC NYC and the IDA hosted the inaugural Documentary Preservation Summit a two-day conference at IFC Center from March 31-April.

The goal of the summit was to draw attention to the growing problem of documentary films
being lost, never to be seen again. Tuesday night’s keynote panel acted as a
call to action for documentary preservation, educating the audience on why
films aren’t being preserved and what can be done.

READ MORE: 5 Key Takeaways from the Documentary Preservation Summit

Thom Powers, artistic
director of DOC NYC and creator of the documentary series “Stranger Than
Fiction” at IFC Center, moderated the discussion panel.  One of the biggest takeaways from the panel
was attorney Michael Donaldson’s remarks on fair use. Documentary filmmakers,
you don’t have to be afraid of contracts. Pay close attention to what Donaldson
has to say in the key facts and tips below:

You don’t have to renew a contract. Once the contract is over, it’s gone. That’s the first
thing we look at — is there a survival clause? Second thing we look at is a ‘bump up’ paragraph. Very common for festival rights contracts. Ugh,
spare me festival contracts!! Their idea of negotiating reasonably and your
idea is going to be different. And then the third thing we do is we go through
the whole contract to make sure there isn’t something floating around that
might add to your obligations. E&O doesn’t cover contract breaches, but we
can sometimes slide it in under fair use for this. It is a high-risk area, I
don’t want to misrepresent that. Our deal with filmmakers is that if you get
push back and someone calls and yells at you, we will negotiate with them for
free and you have to agree to pay what the same license fee is that you paid
before.”

Never sign short licenses.  “Clips, posters, photos, artwork — anything that you would
want to use and you can’t for some reason can’t get it without going to the
license holder. Don’t agree to any license except all media, all rights, in
perpetuity, forever. It’s so important because these films that you’re making
may become more important in the future, unlike narrative films. Your films
have a value forever. Don’t sign licenses unless they’re as long as they need
to be — forever, all media.”

You never have to pay a penny if you understand fair use.  “‘Room 237’ — a third was clips from “The Shining.” Yes, we got a call from Warner Bros. and we talked to them, but
not a penny was paid. In the film ‘Los Angeles Plays Itself’ – there are no
other materials in the fim besides clips. Every clip was fair use. You can’t be
afraid of this. If your lawyer doesn’t think this can be possible, have your
lawyer email us and we’ll send him an article that explains it. When it comes
to music — music is used in two ways. If you’re talking about the music, ‘20
Feet from Stardom,’ ‘Troubadours’ — we never paid a penny for the music in
those. If it’s underscore, it can’t be fair use.”

However, don’t pin yourself into a corner (think outside the box). “Plan ahead so that you
don’t fall in love with a particular piece of music. Or have a composer come in
and write something from the period. Don’t write something that ‘sounds
like this’ — it’s very easy to stub your toe doing that. It’s better to
just go in and say “write some dance music from the ’60s.” Don’t hand
them a particular song. Or, you can do — like, ‘Escape From Tomorrow’ —
one piece that had to be licensed was the music going through the tunnel. So,
the instruction to the composer was to write music that was more annoying than
the actual music at the Disney park.”

READ MORE: Columbia Law Professor Says Sundance ‘Escape from Tomorrow’ is a Cut-and-Dry Fair Use Case

This Article is related to: Filmmaker Toolkit and tagged , , ,