For many filmmakers, the US market presents an obstacle because of generally stricter requirements regarding clearance of material and documentation of chain of title. This article presents an overview of the main clearance issues to consider under US law, but fear not – it may not be as bad as expected! In fact, European law in this area can be even more restrictive and difficult to navigate. While in production, it is helpful to have to establish a few ground rules.
First, make sure that all crewmember contracts are in place to avoid misunderstandings over scope and difficulties obtaining signatures after the fact.
Second, it is helpful to consult with a lawyer during production to determine whether to include any pre-existing footage or material in the film as well as footage of individuals who have not given their permission.
Third, all of this information should be combined into a “rights bible” for reference by counsel and prospective distributors. The rights bible will also help with obtaining errors and omissions insurance required as a deliverable by most US distributors.
Fair use. In the US, filmmakers may use preexisting material without clearance if the use qualifies as fair use under copyright law. European law does recognize a similar principle, but its application is far more limited and often country-specific (such as fair dealing in the UK and the right of quotation in Norway).
For these reasons, clearance of pre-existing materials in Europe may often be more difficult than in the US. There are several reasons a filmmaker may want to rely on fair use – the owner cannot be found, a request for license would be futile due to the way the material is used in the film, or the license terms are too restrictive or the fee too expensive. What kinds of programs qualify as fair use? US Copyright Act Section 107 provides some guidance and includes use for the purposes of “criticism, comment, news reporting, teaching, scholarship, or research” as qualifying under fair use. There is often a strong presumption of fair use if your work fits within one of these categories. Courts have acknowledged that documentary films and other non-fiction works may qualify, provided other requirements are met.
Additionally, courts consider whether the new use is “transformative” and alters or supersedes the original with new expression, meaning, or message. When analyzing fair use, US courts rely on four factors listed in Section 107:
(1) the purpose and character of the use, including whether such use is of a commercial nature or for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. Often certain factors are given more weight than others. Two cases are illustrative. In the first, involving a Muhammad Ali documentary, Muhammad Ali: The Whole Story, 1996, the producer included at least 14 clips of footage, from 41 seconds to two minutes in length from the previous documentary When We Were Kings, without permission from the owner.