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Fair use has long been a headache for the documentary filmmaker.
There is a new set of rules in town for documentary filmmakers.
These are rules that apply to anyone who makes films, non-fiction or
narrative. If you are a filmmaker, in any way connected to the
business, or simply care about documentary films, run, do not walk
to the following Web site:
www.centerforsocialmedia.org/fairuse.htm. Here you will find a
remarkably complete set of guidelines about fair use, quite often an
element in a non-fiction film that ends up costing more than the
film itself.
Called Documentary Filmmaker’s Statement of Best Practices in Fair
Use and developed by a consortium of careful thinkers devoted to the
art of the documentary, it is for our own protection. It is about
time these rules are on paper for all to see.
It is worthwhile for everyone to read, digest, copy and attach to
the bulletin board for frequent reference. Mostly the guidelines are
easy to understand, though some parts are in a language only a
lawyer can love. If followed, they will serve to keep filmmakers
from potential problems and legal trouble. These rules are the best
I have seen. At least they are rules and they are in one place in
one document. Though not guaranteed to protect you from the danger
of litigation, if you follow them, you should stay out of trouble.
The guidelines will not be easy to follow. Why should they be?
Making a film is not easy. Why should it be? One more thing to be
conscious of will probably make for a better film and that is what
we all want.
Often controversial, and rarely clear, at least in the past, fair
use is a concept mostly misunderstood by everyone, except for a few
lawyers who make a good living defining the vicissitudes of
understanding who owns what. If not careful, the documentarian can
find him or herself in a situation where they have to pay a great
deal of money for the right to use another’s material, material
collected on purpose, or inadvertently in a street scene, over the
radio or on TV. If understood, and it does not take much to
understand the guidelines, the “inadvertent capturing of material”
and then the cavalier use of it, can get one into a lot of trouble.
A filmmaker, no matter how careful, and no matter how germane a
scene may be to his or her film, cannot blithely use copyrighted
material, sounds and images, without, in limited instances, paying
for their use or at least acknowledging the use of the material on
screen or in the credits. Yet doing all that will not always absolve
the filmmaker from paying the price of using someone else’s
creativity.
In many years at NBC News and ABC News and as an independent
filmmaker, fair use has always been befuddling. As producers, we
thought the lawyers made up what we could or could not use. Then we
thought they involved themselves needlessly in the creative process
by telling us how to use a photo, to play a song, to show a movie
clip, or whatever, in a way that befuddled us more because
creatively nothing they suggested ever worked. I had many an
argument with a lawyer over fair use because I considered one of my
roles was to protect my production from outsiders. Lawyers were
always outsiders who were there to protect the corporation, and, in
their eyes, if at times the production had to suffer, they could
live with their decision. With this new set of guidelines in mostly
easy to understand language, and much of it, I am certain inspired
and written by lawyers, they have redeemed themselves. If I can
understand everything in these pages, the lawyers did inspired work
in making what is often murky, clear.
 Here
are a few examples. At NBC News working for Sunday Today, I produced
a segment about senior citizens who rode motorcycles as their hobby.
I opened the piece with a long sequence from The Wild One starring
Marlon Brando to show the contrast between youthful wildness and the
old timers riding huge machines that looked as if they were tooling
around the countryside on foam rubber mattresses. Though I credited
the sequence, we paid nothing for its use. It helped make the piece
because it grabbed the audience’s attention from the start. In a
sense, I pirated the scenes from the movie. No lawyers from NBC or
outside the network came to call and said cease and desist or else
we will be liable for a large rights payment. Today with so many
opportunities to make money, and with so many watchful eyes, that
would never happen, rightfully so. If these new guidelines existed
then, that would never have happened.
At ABC News Productions, I produced the Frank Sinatra obituary for
A&E after we learned he was seriously ill. A&E would only use the
one-hour documentary when he died. Having an obit ready is a common
practice. There was one proviso. To be free of rights issues, the
documentary could only play once. It could never play again.
Justifiably, fair use made its presence felt. Because we used Frank
Sinatra’s songs and appearances from many different sources, to air
it again under any circumstance would have been too costly. We would
have had to pay high fees for everything we used of Sinatra from his
movies, his recordings and his TV shows. ABC’s and A&E’s lawyers
were all over this problem and advised caution, which turned out to
be a very good economic decision for everyone.
 At
Douglas/Steinman Productions, we have completed almost all the
shooting for our documentary, “The Dance Goodbye,” a film about
Merrill Ashley, a prima ballerina at the New York City Ballet who no
longer can dance. She is the last of the George Balanchine
ballerinas and a wonderfully articulate subject, not only about
dance, but also about life and the change we all face when we are
unable to do well what we once loved. We have one problem. Ballet is
central to the film. That means each time you see Merrill dance we
must pay performers on every level – dancers, musicians, conductors
and choreographers who are under union and contractual obligations
The cost to complete the film is thus expensive. Fair use can only
take us so far. Using only a few minutes of dance in a film about
dance would be a disservice to Merrill Ashley, to her fans, to dance
itself, and finally to the film. We know that and as much as we
would like to use freely footage from Ashley’s dancing life, we
understand it makes no sense to buck the system. Now with this new
set of guidelines, it is clearer than ever that there are rules we
should never break no matter how much we would like to.
The lesson for any of us making films is that when using something
created by someone else, use it carefully, sparingly and always
credit the original work. Increasingly copyright is under attack by
those who believe everything in this new digital age should be free.
This document makes clear that copyright is sacrosanct. Defying or
denying ownership of a creative work is wrong. Filmmaker's must note
when someone else’s creativity is part of a new film. Attribution of
copyrighted work and the judicious and limited use of another’s
material are key components to keep a filmmaker safe from a lawsuit.
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At NBC News for 35 years, Ron Steinman was bureau chief
in Saigon, Hong Kong and London, was a senior producer on Today and wrote
and produced for Sunday Today. At ABC News Productions, he produced
and wrote documentaries for A&E, TLC, Discovery, Lifetime and the
History Channel. He has a Peabody, a National Headliner award, a
National Press Club award, a International Documentary Festival Gold
Camera Award, two American Women in Radio & Television awards and
has been nominated for five Emmy's. He is a partner in
Douglas/Steinman Productions, whose latest documentary, "Luboml: My
Heart Remembers," aired on PBS' WLIW/21 and the History Channel in
Israel, April 29, 2003. He is the author of, "The Soldiers 'Story",
"Women in Vietnam," and most recently, "Inside Television's First
War: A Saigon Journal," University of Missouri Press, 2002. |
