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Fair Use Question

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Aaron CadieuxFair Use Question
by on Feb 22, 2013 at 5:59:19 pm

Hey Everyone,

So I am working on an indie doc that features a lot of newspaper articles being shown the screen as b-roll. There are quite a few articles in the documentary. I have contacted the newspapers and their quote for permission to use the articles was high (for me). They want $150/image, and there are dozens of articles that I want to use.

After reading various sources online, some documentary filmmakers have successfully argued fair use when showing newspaper articles to show that a historical event was newsworthy.

Do you guys generally get permission from the papers, or do you take your chances with the plan to argue fair use if you're confronted? I am thinking that fair use has its limitations, but it's hard to know what those limitations are. I'm no lawyer.

Thanks guys,


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Tim WilsonRe: Fair Use Question
by on Feb 22, 2013 at 6:35:28 pm

Once you've asked for permission and they come back with a quote, fair use is out the window. It's a commercial transaction that you're either going to participate in, or knowingly dodge.

Where fair use comes in is if you're making this particular newspaper the subject. That is, fair use covers short quotes or visual instances when being used for scholarly purposes or criticism OF THAT THING.

So if you're talking about The XXX News's coverage of an event - fair use. If you're using it to illustrate that such a thing happened in history and are using a picture of the front page as b-roll so to speak -- not.

You can sometimes skirt the edge of this if the use is fleeting, but you're talking about dozens of shots. Even if they lose the argument on "news coverage is subject to fair use" aspect of the argument, they won't lose the "fair use requires LIMITED use" argument.

Or the "he asked and we told him" argument.

This is music rather than media, but in 1998, you couldn't miss this song. It was nominated for every major award you can think of, and sold bazillions. One of my favorites from the era.

It includes a sample of a Rolling Stones song, which the performer licensed, signed a contract and paid for -- but he was found to have used "too much" for it to be called a sample. (The strings.) I just read that the court found that, as such, Jagger-Richards should be listed as the co-authors, and as a penalty for overstepping the bounds of his contract, the lyricist/performer would get zero, and all rights for the song would be held by the Stones publishers.

We can argue all day long whether this was an example of the big bad corporate meanies representing The Rolling Stones crushing a smaller artist - but in fact, the artist had a contract that HE didn't keep, and the Stones were well within their rights to go after the guy.

A great song though, and a cautionary tale: you're officially on the radar now, Aaron. Pay up or find another source. Or heaven knows, you can consult lawyers who actually know what they're talking about. LOL

Tim Wilson
Vice President, Editor-in-Chief
Creative COW

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Andrew KimeryRe: Fair Use Question
by on Feb 22, 2013 at 10:43:41 pm

The only person that I would trust to answer the question is a competent IP attorney and the attorney isn't going to be able to give you a finite answer until your doc is done (or close to done) and everything can be seen in context as context can play a roll in determining if Fair Use could apply.

I went through a lot of this while editing an indie documentary on the late comedian Lenny Bruce called Looking for Lenny ( In order to sell the doc we had to get E&O insurance (errors and omissions insurance) and in order to get that we had to get a lawyer to look at our movie, look at all of our releases and license agreements and basically say that in his legal opinion we have the proper rights to every image and every sound in our doc.

It really is a cat and mouse game as you need to start editing the film together before you can figure out what you can and can't use. Many places want to see things in context before they give you the right to use them. For example, we used a headline from the LA Times and they wanted to see how it was going to be used in the film before they made their decision. So we sent them the snippet of the doc that contained their headline and they were okay with it and gave us permission to use it but one stipulation is that we could not alter it from what they had seen and if we did we had to re-submit for approval.

If you are going to be using a number of assets from a single source try talking them into giving you a bulk discount or explain what your doc is about, that it's an independent movie and see if you can sweet talk them into a discount. A thing to keep in mind is that even if you believe something is Fair Use if someone sues you over it you still have to spend lots of time and lots of money defending yourself in court.

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Tom SeftonRe: Fair Use Question
by on Feb 23, 2013 at 9:25:26 am

Great song. I saw them at Glastonbury the year jay z was there. They were grumbling about Andrew loog Oldham even though it was 10 years later!

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Al BergsteinRe: Fair Use Question
by on Feb 23, 2013 at 7:20:37 pm

Check out the article by Kenn Rabin in this quarter's Documentary Magazine. It's all about this very issue. Just arrived in my mail today.

"Raiding the Lost Archives, Wisely and Legally" a short guide to clearing copyrighted footage.


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Herb SevushRe: Fair Use Question
by on Feb 27, 2013 at 3:44:07 pm

Tim -

What song did the sample come from?

Herb Sevush
Zebra Productions
nothin' attached to nothin'
"Deciding the spine is the process of editing" F. Bieberkopf

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Tim WilsonRe: Fair Use Question
by on Aug 24, 2013 at 4:02:09 pm

Sorry I missed this question at the time, Herb!

The sample is from an instrumental version of "The Last Time," arranged and performed by The Andrew Oldham Orchestra.

Remember all those 101 Strings albums back in the 60s and early 70s? It was exactly like that...strings versions of Rolling Stones songs, in this case, done by their (then) manager and all-round music impresario/sociopath Andrew Loog Oldham -- and I mean "sociopath" in the best possible way. There were certainly, uhm, "issues," but music is the better because of him and his intensity. How intense? He took over managing the Stones when he was 19!

In general, though, The Verve's case is certainly a lesson that even a contract won't protect you from infringement claims if you step out of line with its terms.

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Herb SevushRe: Fair Use Question
by on Aug 25, 2013 at 3:58:32 pm

Tim - having studied all the Stones album covers like they were the dead sea scrolls 40 years ago, I do know who Andrew Loog Oldham is, although I admit to knowing nothing about him other than that he was the Stones manager and producer when they started.

I missed the whole controversy over the Verve song, although to me it's a clear case of plagiarism, so i don't get what's controversial, other than in the modern "free" world of the internet where everything is supposed to be free and the concept of intellectual property rights is an evil, in and of itself.

Thanks for pointing me to the original album. It's quirky and nicely done - although I probably would have hated it at the time. The only orchestral strings I ever liked on a Stones song was Paul Buckmaster's great scoring for Moonlight Mile. Along with all of Procol Harum's orchestral work, it is to me the best use of strings in a rock setting.

Herb Sevush
Zebra Productions
nothin' attached to nothin'
"Deciding the spine is the process of editing" F. Bieberkopf

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