Documentary and feature filmmakers gathered Sunday to hash out the proper uses of copyrighted material at the AFM panel “What’s So Fair About Fair Use.”
Event was moderated by entertainment lawyer Michael Donaldson, documaker Kirby Dick, Christi Deardorff, underwriter for Media Professional Insurance, and Winnie Wong, insurer for DeWitt Stern Group.
“We’re really coming out of the dark ages,” said Dick, whose “This Film Is Not Rated” tested the limits of how and when fair use applies. “I never considered fair use as an option until a few years ago.”
When Dick started making the doc, he thought he would have to pay for each film clip and had prepared a budget of $150,000 to acquire between 10 to 20 clips, but since his use of clips was illustrative and educational rather than commercial, he was able to use about 140 free of charge, and without having to ask for clearance.
“We were eager to take on the fair-use issue since we were already taking on the ratings system,” Dick joked.
When advising client filmmakers, Donaldson said he asks three key questions that indicate whether fair use applies: “Did I really need it? Did I only use what I needed and why did I use this particular footage?”
Other factors to consider include the way in which the copyright material was used — the more creative and satirical the more likely the use is protected — and its effect on the potential market for the copyright.
“Filmmaking is a business,” said Wong. “It’s not just a creative process so it’s the filmmakers’ responsibility to look at the underlying facts and get an underwriter at the beginning of the process.”
Get an underwriter first, and then seek a distributor, advised Donaldson.