Recently, I was taken aback when I read Orly Ravid’s otherwise really helpful piece on legal advice. I know from experience that it’s really hard to write legal advice in a general way while also steering clear of landing people in trouble, and I commend her helpful tone throughout. Nevertheless, I find her advice on fair use needlessly pessimistic and alarmist, given how in recent years, documentary filmmakers’ have demonstrated they do not have trouble understanding the application of fair use when provided with the correct interpretative tools.
I can say this with confidence because in a recently published national survey of filmmakers authored by Professor Aram Sinnreich and myself, we document and analyze how access to information about best practices can make a difference in the way documentary filmmakers apply fair use towards their work over the course of a decade.
Ravid’s cautiousness towards fair use might have been true at a certain point in the past — namely, the late 1970s and early 1980s, which was when fair use law was just beginning to be litigated (see Peter Jaszi and mine’s note in our book “Reclaiming Fair Use” for more background). Since 1990, however, judicial decisions have remained fairly consistent. Furthermore, the creation of the Documentary Filmmakers’ Statement of Best Practices in Fair Use helped lawyers, insurance agents and broadcasters alike to become comfortable with the concept to the point where its application has now become routine.
Similar to instances of libel, treason or obscenity, fair use requires an individual to make a judgement call in a situation where his or her right to expression is being threatened. Although it isn’t a formal contract per se, the threat of lawsuit still remains — but that is true of many things. We don’t require, for instance, people to sign waivers to attend parties, even though they could sue us for slipping and falling as a result of spilled beer in the kitchen. Other rights, such as the right to self-defense, are also only formally exercised if someone challenges them.
How routine and dependable is the employment of fair use? Well, one easy measure is that all errors and omissions insurers now accept fair use claims grounded in the Statement, as shown by a lawyer’s letter so asserting. That’s a pretty bold statement about low risk, given insurers’ hatred of risk. Furthermore, filmmakers themselves are also confident, and with good reason. Almost everyone in our survey — 99% — reported no problems with insurers, and 95% said they faced no problem with broadcasters accepting fair use, either. 70% of those surveyed said they had at least a “good” understanding of fair use, and those people were also usually able to define it correctly. Three-quarters felt that fair use is “absolutely necessary” or “very useful” to documentary filmmakers. Some 60% reported that they had recently employed fair use in a production. 97% said they had never lost money from anyone employing fair use of their work, and most of the remaining 3% offered examples that were not, in fact, fair uses.
What changed for filmmakers was, simply, education. They came to understand the law better, and so did the lawyers who help them.
But more, and certainly more focused, education could help. Some filmmakers in our survey continue to modify their work, believing the environment to be riskier than it is. When asked to think of projects they would do if copyright were not a problem, most of the respondents answered with examples of projects that can be accomplished today under fair use. Three-quarters of the survey respondents did not know that they have a right to break encryption on DVDs to employ fair use, even though it was documentary filmmakers themselves who won this exemption from Digital Millennium Copyright Act restrictions. Documentary filmmakers can help their businesses even more by understanding their rights.
When Kelly Nyks made “Split: A Divided America,” a documentary film about partisan divides in American society, he couldn’t have gotten it into the marketplace without fair use: “Until you know about it, fair use is the monster that lurks in the legal shadows. Once you have information, it balances the playing field.”
Patricia Aufderheide is a professor in the School of Communication at American University, co-author with Peter Jaszi of “Reclaiming Fair Use” (University of Chicago Press, 2011), and founding director of the Center for Media & Social Impact.