Copyright and fair use in documentaries

[Erik Norgaard]

Hi:

I recall somewhere that if you shoot a documentary fair use is "extended": You can't control the environment of your subject without violating the documentary. So, objects, photos etc. which is subject to copyright may appear without paying royalties - and I suppose, also music played on the subjects radio. Of course, royalties must be paid for music added in post production.

Is this correct?

Just curious, no project in the pipeline.

Thanks, Erik

[Vedran Rupic]

About the thing regarding music played in subjects radio is free of royalty,
what I've heard about a documentary filmmaker who had to pay around 5000$ (in swedish currency) to a major label because one of their talents song was playing in the background. Just so you know, good to look it up.

[Alex Leith]

Here are my notes for copyright and "fair use". These were specifically written with UK/USA law in mind, but apply in a great many "Western" nations - but of course, consult a media lawyer before doing anything that might get you into trouble!
-----------------------------------------------------------
FAIR DEALING / FAIR USE

There are certain circumstances where you may use copyrighted materials without permission, according to the "Fair Dealing" (UK) or "Fair Use" (USA) exceptions of copyright law.

In many countries you may, in principle, use extracts of a copyrighted work for research or study, criticism, review, or news and current affairs reporting. However it is a highly subjective area which requires proper legal advice.

Basically, to be considered fair usage, extracts must be strictly relevant, and form a comparatively small part of the commentary; they should be as short as possible and certainly not longer than needed to support the commentary; their use should not harm the commercial value of the work, in the sense that people no longer have to buy the original work; the source should be sufficiently acknowledged; and non-commercial educational usage is looked upon more favourably than commercial use.

In practice you may use a small portion of someone else’s work as part of a description or review of the work, it’s influences or effects. Great care must be taken to ensure that the extracts are truly considered relevant – for example, you could not use a photograph of an actor in your movie review unless you are reviewing that specific photograph. Additionally, fair dealing exceptions do not apply if the original work is not available to the public; and you cannot use photographs for the purpose of reporting news and current events.

Sourcing these extracts is another matter, as recent changes to intellectual property laws make it technically illegal to “break” digital encryption and rights management methods that protect modern day media.

INCIDENTAL USE & DE MINIMIS

In many European countries, inclusion of copyrighted materials that are "accidentally" or unintentionally captured inessential background – such as a corporate logo or muzak behind an interviewee in a shopping mall – are considered incidental and are not an infringement of copyright. Music and artistic works which are incidental cannot be a planned or featured part of your production.

In the United States background or montage inclusion of copyrighted materials that are fleeting and cannot be easily recognized may be considered De Minimis, or too trivial to be disputed.

Incidental use and De Minimis are, once again, highly subjective areas, and wherever possible it is best to avoid including copyrighted materials in the background of your production. When filming be aware of background music, photographs, posters, corporate logos, etc. and endevour to minimize their recording and inclusion.

[Erik Norgaard]

Originally Posted by Alex Leith

INCIDENTAL USE & DE MINIMIS

In many European countries, inclusion of copyrighted materials that are "accidentally" or unintentionally captured inessential background – such as a corporate logo or muzak behind an interviewee in a shopping mall – are considered incidental and are not an infringement of copyright. Music and artistic works which are incidental cannot be a planned or featured part of your production.

Incidental use and De Minimis are, once again, highly subjective areas, and wherever possible it is best to avoid including copyrighted materials in the background of your production. When filming be aware of background music, photographs, posters, corporate logos, etc. and endevour to minimize their recording and inclusion.

Thanks for the thorough explanation. I didn't know the legal term, but De Minimis is exactly what I was thinking about.