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Fair Use in a Documentary About Syria

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Juan David Romero
Fair Use in a Documentary About Syria
on Dec 13, 2017 at 3:42:17 am

Good morning. I have a legal question about using news clips on a short documentary film that is 23 minutes in length. I'm using the news clips to help tell a story and help the audience visualize the war in Syria. The clips, which happen throughout the film, are as follows:

10 seconds of a CNN clip showing the city of Aleppo and how it was before the war overlayed with voice over of my interview subject talking about Syria.
6 seconds from a news clip from a Middle Eastern network reposted on Youtube by WarClashes of a helicopter throwing bombs in a city.

Then I have three clips from one BBC news clip split in different parts of the short documentary as follows:

7 seconds drone news clip of the city of Aleppo
7 seconds from that same clip showing children hurt by bombs while my interview subject talks about the Syrian state hurting its own people
6 second clip of bombs falling in the city of Aleppo

What are your thoughts about using these clips? What I plan to do with the documentary is send it to short film festivals and to post it on Vimeo and Youtube.

And even under fair use, do I still have to credit the clip at the end of the film?

You think I can at least get away with the 10-second CNN news clip?


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Greg Ball
Re: Fair Use in a Documentary About Syria
on Dec 13, 2017 at 2:54:18 pm

Here's something posted by Ned Miller several years ago. This may answer your questions.

FWIW

I received a spam from an entertainment lawyer and was about to reflexively delete it when I saw the word "documentary" so I felt I should read it. From time to time I have clients who want to "lift" or "borrow" (seldom pay) for news footage since they figure it's public domain, after all, it's just news. Most of what I do is not for commercial release so until I read this email I felt it was in a gray area. I have never been able to afford E&O insurance so I stay clear of taking on risk for the client's benefit and if I could afford it I wouldn't trust the insurance company to not snake out of the claim and protect me. I am posting it here for the benefit of all since this question comes up from time to time on this forum and answers the issue clearly:


Question and Answer for this week:

Question:

Question about using news clips in a documentary: We're producing a documentary about a major criminal case revolving around a bank robbery ten years ago and one of our producers has been collecting news clips for years about the case from CNN, America's Most Wanted, Geraldo, etc.

We plan to use only a few seconds from each in a sequence to show how much interest the case generated. Can we just use the clips that were "ripped" from TV recordings, or do we need to get permission/pay/for each one individually?

Answer by Brandon Blake, Entertainment Attorney:

It certainly seems ubiquitous in feature films and documentaries to have the montages of breathless news reports about this or that subject as an easy way to introduce the audience to the topical or "real world" nature of the story.

Much of the confusion about the use of news footage actually comes from some of the special exceptions to copyright law that are available for the production of news footage provided for under the fair use doctrine of the U.S. Copyright Act. For television producers producing news programming, you can see one of my former articles here: <> for information about whether the fair use doctrine might be applicable.

For the most part fair use is beneficial to the producer of news programming, rather than those seeking to license news footage. While certain factors of the test would support the fair use of news footage, given that news programming is hopefully factual work rather than fiction, the greatest problem for documentary filmmakers is that a market currently exists for licensing news footage, which tends to negate the other three factors of the fair use test.

From a practical standpoint, the fair use defense is just that, a defense. That means that to prove that a usage of copyrighted material is fair use you have to go to trial. Most film and television distribution companies do not want to go nearly that far defending the distribution of a property, and generally do not want to take any risk at all.

For that reason unlicensed use of news programming, even a few seconds worth, will typically prevent a producer from getting E&O insurance. Over the years I have noticed that a lot of E&O insurance providers no longer review films and documentaries they cover, and so therefore a lot of unlicensed footage does end up getting into distributed works. Producers should not assume there is no risk, however, because the insurance companies are relying on the blanket warranties that the producer is signing. If it turns out the producer breached these warranty clauses in the E&O insurance contract, the insurance company will not cover the loss or claims, leaving the costs and liability with the producer of the project.

So although there is some gray area, generally anyone producing a film or documentary intended for commercial release needs to license third-party news footage. Some alternatives would be to check with stock footage houses to find similar, royalty-free footage, or to produce the footage in-house.

Commercial news footage, especially from the major networks, is expensive and it is licensed by the minute, meaning that 5 or 10 seconds is not a de minimis use. My firm has helped a lot of documentary film producers negotiate more reasonable rates, often substantially below the initial quote. Feel free to contact my firm for a quote if you decide to negotiate licenses with the networks.

- By Brandon Blake, Entertainment Attorney

About the Editor:

Greg Ball, President
Ball Media Innovations, Inc.
https://www.ballmediainnovations.com


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Andrew Kimery
Re: Fair Use in a Documentary About Syria
on Dec 14, 2017 at 4:29:33 am

[Juan David Romero] "What are your thoughts about using these clips?"

1. Ask an experienced IP attorney. 2. Do #1.

[Juan David Romero] " What I plan to do with the documentary is send it to short film festivals and to post it on Vimeo and Youtube.
"


Film festivals won't screen it unless you sign a legal document saying you have secured all the proper rights and clearances for all the audio and video/images used in your film. IIRC Vimeo's terms of service require that you have all the proper rights and clearances for what you upload to their service. YouTube automatically scans all uploaded audio and video for copyrighted media and each uploaded video that is deemed to be a copyright violation counts as a strike. You can try to appeal it (prove you have obtained the legal rights to use it), but, IIRC, after three strikes your account is closed and all your videos are deleted.

[Juan David Romero] "You think I can at least get away with the 10-second CNN news clip?"

Do you think you can spend the time and money it takes to hire a lawyer (and possibly go to court) if CNN comes knocking at your door?


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Todd Terry
Re: Fair Use in a Documentary About Syria
on Dec 14, 2017 at 5:43:42 pm

[Juan David Romero] "You think I can at least get away with the 10-second CNN news clip?"

For the sources you mentioned (CNN, BBC, a Middle Eastern network), among those CNN is probably likely to be the most litigious of the bunch... not the least. They have a division that regularly licenses and makes available their news footage for people exactly like yourself, and aren't likely to say "Eh, it's ok" if you choose to grab their footage and use it for free. They are, by the way, one of the more expensive stock sources as well, and since CNN buys a ton of freelance footage you may very likely find the same exact thing available elsewhere... where it would probably be cheaper.

As was noted in another answer, claiming "Fair Use" is only a defense if someone makes a claim against you. It does nothing to prevent them from making that claim, filing a suit, or attempting to take any other legal action. And if that were to happen, and even if you were to prevail and it is determined that the footage is available to you under Fair Use (which is probably unlikely), you would have already spent hundreds of times as much in legal costs than if you had just properly licensed the footage in the first place.

So.... just bite the bullet and buy the footage.

T2

__________________________________
Todd Terry
Creative Director
Fantastic Plastic Entertainment, Inc.
fantasticplastic.com



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Tim Wilson
Re: Fair Use in a Documentary About Syria
on Dec 14, 2017 at 10:46:02 pm

[Todd Terry] "So.... just bite the bullet and buy the footage."

All of what these guys said, with one more variation: start by just asking. Don't assume that they're going to charge too much. Don't assume that they're going to charge you ANYTHING. In fact, assume that they won't.

Because you're right that in the scheme of things, your usage isn't the kind of thing that they want MONEY for per se. But they always, always, ALWAYS want CONTROL. There are people in every media organization, news or otherwise, whose job it is to remove 100% of unauthorized footage.

As folks here have noted, Fair Use will NOT prevent you from getting takedown notices. If the notice goes to YouTube or Vimeo rather than you under their blanket agreements, those hosts will simply take you down and block from trying to repost your entire project. You'll have to go through many, many hoops to figure out which was the offending footage (or photos or music or who knows what), and have to go through a bunch more hoops to establish that you're not a habitual violator who's going to cost them even more time and money shutting you off again. You do not want to go down this road.

Better for you not to do this at all than to decide it's too much trouble to ask permission first. In most cases, this can be handled with a web form.

This is really your first gut check as a documentarian. Not "How important is this story to me?", not "how important is it for the world to hear this story?", but "Is this story important enough to me that I'll do my job as an ethical producer?"

Because believe us geezers who've been around this block many, many times. The shortcut LOOKS like "nah, no need to ask these guys," but that could not just cost time, but money, and eventually prevent your work from ever being seen at all. Bzzzzt! Wrong answer. 😂

The ACTUAL shortcut is going to rights holders FIRST. If the answer is no, or too expensive, then you haven't wasted the time to cut it into your doc in the first place. You'll figure out an approach you can afford, and stay in motion, and stay out of court. ALWAYS ask the rights holders.


PS. General rule of thumb for Fair Use: if the rights holder is obvious, Fair Use will not apply, and the penalties will be much higher than the rights themselves, typically triple damages (ie, not the cost of the footage if you'd just licensed it...or gotten permission to use it for free, which they often DO grant.... but triple the amount of the damage that lawyers from CNN or BBC will claim you've caused them) plus court costs.


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grinner hester
Re: Fair Use in a Documentary About Syria
on Feb 6, 2018 at 1:45:32 am

the only ones who get away with piracy are wedding videographers because it doesn't air.



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Shane Ross
Re: Fair Use in a Documentary About Syria
on Feb 7, 2018 at 1:41:56 am

[grinner hester] "the only ones who get away with piracy are wedding videographers because it doesn't air."

Nope. They get sued:

https://daredreamermag.com/2011/12/07/the-music-licensing-chickens-have-com...

http://abcnews.go.com/Technology/wedding-photographers-fear-sued-music-publ...

Shane
Little Frog Post
Read my blog, Little Frog in High Def


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