A Practical Guide to Fair Use
by Tamsin Rawady and Alex Buono
Filmmaking is a constant struggle between creative vision and budgetary restraint. In the production of our documentary, Bigger Stronger Faster*, no issue better demonstrated this tug-of-war than our use of archival footage. As writers/producers, we quickly learned about an important tool called the Fair Use Doctrine, which could help us balance the conflict between our goal of being legally and fiscally responsible, and telling the most honest and accurate version of our story.
The first problem we encountered is that it seemed like Fair Use was sort of an urban legend: Does it really exist? Can you really use archival clips without licensing them? And does anyone understand how this all works? We spoke with many producers, who seemed to fall into two camps: those who never evoke the Fair Use Doctrine because they heard it is so complicated to wage your legal argument, and those who cavalierly claim “Fair Use!” for every clip in their film and then cross their fingers. Three years later, we managed to finish, sell and distribute a film containing over 800 archival clips with hundreds of cases of the Fair Use Doctrine being practiced, and we decided to share some of the practical lessons we learned about Fair Use with other filmmakers.
Bigger Stronger Faster is the story of our director, Chris Bell, and his two brothers who grew up during the ’80s under the influence of muscular action stars like Arnold Schwarzenegger, Sylvester Stallone and Hulk Hogan. The American Way was being projected to these young, impressionable boys as a win-at-all-cost mentality, and we were interested in how that affected their decision to use performance-enhancing drugs later in life. To truly examine the impact popular culture had on these three brothers, we knew we had to use archival footage from the time period. We also knew we could never effectively tell this story without actually showing clips from professional sports. As we broke down our wish list of archival footage, it was full of movie and television clips from some of the most high-profile and notoriously litigious corporations in the world, including the International Olympic Committee, Major League Baseball, the National Football League and World Wrestling Entertainment—all of whom did not want their brand associated with a movie about performance-enhancing drugs. When they all denied us the right to license footage from them, it was easy to become discouraged.
Thankfully, we had a dedicated archival team (Andy Zare, Pamela Aguilar and Susan Ricketts), and a legal team that specializes in the application of the Fair Use Doctrine. You must find an attorney familiar with Fair Use. In our case, attorneys Michael Donaldson and Lisa Callif (Donaldson & Callif) soon became two of the most valuable members of our team; additional critical advice came from veteran archive producers Prue Arndt, Deborah Ricketts and Barbara Gregson. What follows is a list of steps and tips that we learned along the way.
The Rough Cut—Organizing the Footage
The first decision we had to make was whether to include clips in our rough cut that we knew we could never license. One philosophy is to only use timecoded clips from legit archive houses so that when it’s time to picture-lock and finish your film, the process is relatively straightforward. The other philosophy (which we adopted) is to explore any and every possible editorial option—clearances be damned! We decided it was more important to edit the film without creative restrictions, and thus we ended up digitizing footage from traditional archive sources whenever possible, but also from every other imaginable source: DVDs, YouTube videos, TiVo’d news programs, old VHS tapes, etc. But it was far from reckless abandon. Our archival team implemented an organization system to timecode and track every piece of footage through a Filemaker Pro database. Since this approach resulted in hundreds of hours of archival footage, we had a team of interns constantly logging new footage into our database, and an apprentice editor working the night shift digitizing footage.
The Legal Review
Once we had a relatively coherent rough cut, we output a timecoded DVD with a corresponding log of the archival clips in the cut, identifying the copyright holder, current licensing status, and whether we anticipated making a Fair Use argument for the clip. This DVD/log went to Donaldson & Callif for review. They examined the context of every archive clip we had marked as Fair Use, and gave us their legal opinion on the strength of each case. In all honesty, we were anticipating an “Us-vs-Them” kind of relationship where the lawyers were going to try to stop us from exerting our creativity with an overly conservative approach to the law. On the contrary, the goal of our attorneys was to exercise the Fair Use Doctrine as often as possible—not just as a Plan B if the clip license is denied. If our use of a clip falls within the definition of Fair Use, we would use the doctrine—and quite often not even approach the copyright holder at all.
Fair Use or Not Fair Use?
This is not to say that our attorneys let us off easy. They denied Fair Use for as many archive clips as they approved. They were very strict about the necessity for the clip to be contextualized, rather than just an entertaining cutaway. For example, in one scene we explore the use of amphetamines by Air Force pilots. As a fun introduction, we tried to use that memorable clip from Top Gun: “I feel the need for speed!” Funny? Yes. Fair Use? No. Our attorneys told us that if we wanted to use the clip here, we would have to obtain the license from the movie studio as well as the talent releases from the actors in the scene (including Tom Cruise).
Making the Case—and the Story—Stronger
Donaldson & Callif provided not just a list of approvals and denials, but also notes about how we could alter the rough cut in order to make Fair Use arguments. Does that sound like creative notes coming from your lawyer? Well, we were surprised to learn that by accepting their advice and better contextualizing a clip, we not only waged a better Fair Use argument, but we quite often made a clearer story point. For example, there was a clip of Hulk Hogan delivering his wonderfully over-the-top motto: “Train, say your prayers and eat your vitamins…Be a real American!” We thought the clip was hilarious, but on the advice of our attorneys, we added voiceover before the clip explaining how much that motto meant to Bell and his brothers as children. The result was a stronger defense for Fair Use as well as a much more meaningful scene.
When to Hire an Attorney
Another important point to understand about our relationship with our Fair Use attorneys is that we brought them into the process very early—six months before we finished editing. It was essential to get their advice while we still had time to re-cut scenes—even re-think scenes, if need be. It would have been an enormous mistake to limit the value of their input by waiting until picture lock before involving them.
The Downside of Fair Use
One of the benefits of licensing a clip, in lieu of applying Fair Use, is that you also get access to a high-quality master. With Fair Use, you are on your own to find the highest-quality copy of the footage, which can take weeks and requires a great deal of manpower. We ended up “mastering” from sources as degraded as old VHS recordings of TV shows that we bought second-hand and from low-res online downloads for which no master source even existed. Post-production became more difficult as we had to convert and up-res all of these different formats to high-def. In a few cases, we actually decided to pay for the license of clips for which we knew we could employ Fair Use, simply to get the high-quality master.
E&O Insurance
E&O Insurance is another important factor when considering Fair Use, as there are currently only a few insurance providers that will cover it, and it’s safe to assume that they will need a little extra explanation before they dive in—and may even ask you to alter your edit before they will agree to insure your film. Our Fair Use attorneys were vital in these steps as well.
The Distribution Stage
When it comes time to sell your film, bear in mind that many distributors are still clueless about the application of Fair Use. We would recommend allowing money in your budget for your attorney to talk through your archive clearances with your distributor’s legal department. The Fair Use Doctrine is also a little more difficult to apply when marketing the film. This makes it tricky when your distributor is producing the trailer, for example. You’ll need to approve the trailer to make sure they are not using any Fair Use footage out of context, lest it lead to a lawsuit from the copyright holder and affect the release of your film. Remember, as the independent producer, you are responsible for claims made against your film, not your distributor.
When Copyright Holders Attack
After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims.
Know Your Rights
On a final note, Fair Use is still an area of law that only a limited number of professionals have a solid handle on. The legal departments of the major studios and television networks are prone to roll over and settle with copyright holders, rather than defend their Fair Use cases. This makes it especially difficult for the independent producer, but if filmmakers were more confident in their knowledge of the Fair Use Doctrine, they could tell their stories as truly intended. In truth, it can be very stressful to challenge a copyright holder’s right to their own footage, but it can be done, and your best resources are a good attorney—and a strong antacid.
Tamsin Rawady and Alex Buono are narrative and documentary writer/producers based in Venice, CA. Their production company is Third Person.