Producer Handbook: Fair Use

The Fair Use Doctrine
“Fair use” is the right to use copyrighted material without the permission of the author. The purpose of the Fair Use Doctrine is to protect the right of the public to the free dissemination of information. Most issues of fair use involve news, documentary, or educational programs. Only rarely may purely entertainment programs use the Fair Use Doctrine.

Fair use is a loosely defined concept and one that has been subject to a variety of interpretations. Fair use is a legal defense - not a license. Be careful.

Section 107 of the Copyright Act enumerates four specific criteria that may be used to help determine whether use without permission of copyrighted material is fair use or copyright infringement. Keep in mind that these criteria are not exclusive and courts may consider factors other than those listed below:

“...Fair use of a copyrighted work...for purposes such as criticism, comment, news reporting, teaching...scholarship or research, is not an infringement of copyright...

…In determining whether the use made of a work in any particular case is a fair use, the factors to be considered include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion in relation to the copyrighted work as a whole;
4. the effect of the use upon the potential market for or value of the copyrighted work.”

In determining whether or not your use of copyrighted material is permissible under fair use, it is necessary to consider all of the points listed above.

Fair Use Guidelines --Factors That You Should Consider A court considers and weighs many factors, no one of which may be determinative. If you wish to use material under the Fair Use Doctrine, discuss it with the production department before finishing the program. We may advise you to either obtain clearance of the material from the copyright holder or get a fair use assessment (a written legal opinion) from an attorney. This can help you to assess the situation and avoid costly errors and adjustments later. Attorneys rarely make this assessment without seeing the material in context in a rough cut. Since you may have to wait until your rough cut to get an opinion, it would be wise to have a back-up plan for replacement of the material in case the attorney does not deem it fair use. Remember, as the producer of your program, you are liable for any copyright infringement and its consequences.

• The closer a program is to a traditional historical documentary or biography and the shorter the excerpt, the more likely it is that the use will be considered fair.
• If you are using an excerpt purely to enhance production values and/or to entertain the audience, it is unlikely to be considered fair use. For example, using an excerpt from “Singing in the Rain” to spice up a documentary on weather might not be considered fair use. In contrast, if the documentary was on Gene Kelly or on the history of dance in film, an excerpt might legitimately be used under fair use.
• The use of a limited excerpt during a critique or review of the work is fair use.
• It may be unwise to rely on fair use to permit your use of a photograph since you can’t necessarily excerpt a photograph as you can a movie. In most cases, you will be using very close to 100% of the photo, certainly a substantial portion of the work.
• The use of “key” scenes or particularly well-known clips should cause concern because your use may be seen as having an adverse impact on the market value of a copyrighted work.
• Acknowledging sources only demonstrates you are not attempting to plagiarize. It does not constitute fair use.
• If your use is permissible fair use and you feel that acknowledgment of the source of the material is appropriate and possible within the credits, it would be prudent to do so.
• “Actuality music” and fair use: Music captured inadvertently as part of recording a scene—for example people singing “We Shall Overcome” during footage from a protest march—and that is not used to increase the production value of your film, may be considered “actuality music” and allowed as fair use. This could be applicable in footage shot by you or as a part of acquired footage. To determine the use of actuality music as fair use, you should consider all of the Fair Use Guidelines outlined here.
• Engaging only in non-profit forms of distribution will not necessarily protect you in a fair use claim.
• Whether or not a work makes money for a producer does not necessarily by itself, preclude a claim of fair use. This was evidenced by the case in which rap musician Luther Campbell successfully defended a famous fair use claim on the Roy Orbison composition “Oh Pretty Woman,” citing parody as protected fair use, even though the endeavor was completely commercial.
• Parody is fair use.

While you should make fair use determinations prior to contacting the copyright holder, attempting to license rights, which you later claim as fair use, does not necessarily prejudice a judge against you. Fair use decisions should be based on principle, not on availability or cost of acquiring rights.

Section 118 Compulsory License for Non-Profit Producers Producing for Public Television
Section 118 of the Copyright Act gives public broadcasters and non-profit producers a compulsory or automatic license to use published, non-dramatic music and published, pictorial, graphic and sculptural works in programs transmitted by public broadcasting entities. This means that public broadcasters and non-profit producers do not need to negotiate or obtain permission to use such works in programs that will be aired on public television or radio only.

*However, since the compulsory license applies only to PTV broadcast rights with seven-day off-air recording by educational institutions and PBS requires one-year of off-air recording, you are obligated to clear the educational rights for elements in your program. See subsection, Minimum Public Television Requirements (page 3), for a discussion of the issues surrounding off-air record rights. Section 118 does not apply to ancillary uses such as commercial broadcast, audio-visual sales, foreign rights or festivals.

Non-profit producers are those who produce programs for public broadcasting, non-commercial educational broadcast stations, educational institutions, and governmental bodies. However, the term “non-profit producer” remains somewhat ambiguous. The language does not specify that you must be “tax exempt” or give a clear definition for “non-profit producer.” Thus, it is up to you as to whether or not you feel you could defend a “non-profit producer” status if challenged.