Part Five: Copyright Laws, Fair Use, Licensing and Insurance
Copyright history and overview
American copyright protections stem from British laws that date back to the beginning of printing and publishing. The U.S. Constitution in 1787 granted the federal government the ability to regulate the rights of authors in Article I, Section 8, saying: “The Congress shall have Power…
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Three years later, Congress enacted the Copyright Act of 1790, detailing the rights of the creators of intellectual content. That act established the right to copyright and what that right meant for the owners of the intellectual property. A major revision of the act in 1909 gave us the bulk of what current copyright law states, though it was focused only on the technology of the time and would fall behind the advancements of the 20th Century. In 1976, a new revision addressed the advent of electronic communications and motion pictures, among other new technologies. The act was further modernized to address the digital revolution in 1998 with the Digital Millennium Copyright Act (DCMA). Further revisions, new acts and court cases continue to update the law to account for the rapid advancement of technology surrounding intellectual property.
All these changes and advancements in the law stem from the notion that the authors of books should have the right to prevent people from copying their works. That has been interpreted to mean that, while one cannot copy the exact work, the ideas contained within the work cannot be protected from copying. The type of work protected has been interpreted to be literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, architectural work or sound recording. The law also calls for the work to be “fixed,” in this case meaning that it is a tangible form of expression.
The law also addresses who owns the copyright. The author of the work is presumed to be the owner of the copyright. But the identity of the author is subject to interpretation. While many works are the property of the person who created it, works for hire are interpreted as the property of the employer of the person who actually conceived the work, or given to a commissioning party.
One misconception many have about copyrights in the United States is that the work must be registered with the U.S. Copyright Office to receive legal protection. In fact, the law recognizes that any works is copyrighted at the moment of its creation in a fixed, tangible medium. Formal registration with the U.S. Copyright Office can be advantageous for several reasons. First, it establishes an official creation date. Second, it provides evidence for court in the case of a copyright claim. It also allows copyright holders to seek additional damages in court. And finally, it helps establish a record with U.S. Customs to prevent the importation of material that could infringe on the copyright.
Copyright law as applied to filmmakers comes into play in two areas. First, it protects the creative work of filmmakers to prevent unauthorized copying. But it also prevents filmmakers from using the copyrighted material of others except in those cases where permission is granted or fair use allows the material to be included in other work.
One final note: copyrights are not trademarks. Trademarks protect the marks, names and images that differentiate companies and their goods.
Material that cannot be copyrighted
Some material cannot be copyrighted under current laws. Most importantly, and stemming back to the original British concept, one cannot copyright ideas. Written or other presentations about ideas can be copyrighted, but the ideas themselves cannot. Additionally, works that have not been fixed cannot be copyrighted. That could be, for example, an extemporaneous monologue performed live on stage but not recorded. Also not protected by copyright law are very short names, titles or expressions. For example, the Internet Movie Database (IMDB) lists 128 works with the title “The Visit”—and that’s just the titles in English! These short writings cannot be copyrighted because they do not reach the minimum required amount of authorship. Finally, the law does not protect what it calls “useful items.” These include everyday objects that one would use for utilitarian purposes. This part of the law is vague, but suggests one cannot copyright the cut of a basic pair of pants, but can copyright the print on the fabric.
Using copyrighted material
Material that is copyrighted or has been copyrighted in the past can be used in others’ creative work. Material for which the copyright has expired is considered to be in the public domain and is free for anyone to use in any form. Determining the duration of a copyright is complicated because the law at the time the material was created determines its copyright lifespan. Most works created before 1923 are now, by statute, in the public domain (exceptions exist based on when the work was actually recorded versus when it was created). Works published from 1923 to 1977 without a copyright notice are also in the public domain due to legal requirements at that time. These specific rules get more complicated as time goes forward. The best method to determining current public domain status is to consult the U.S. Copyright Office or charts developed by copyright experts (linked below).
Some material goes into the public domain as soon as it is created. In the United States, any photographs, film, video audio and other materials that is produced by a government agency is in the public domain—with, of course, the exception of classified materials. For example, NASA footage of space launches, moon landings and other achievements is all in the public domain and has been ever since they were created.
For material that is not in the public domain, the safest approach to using the material is to obtain permission. Obtaining permission requires a multistep process to guarantee a filmmaker’s rights are protected once the material is incorporated in her work. The first step once it is clear the material is not in the public domain is to identify the owner. That can be a laborious task as the original author may have transferred ownership or the copyright might be on a work for hire and therefore owned by an entity other than the original author.
One the owner is identified, the next step is to determine the rights for which one is asking permission. Most filmmaker want rights for the public exhibition of their work. But most filmmakers do not need exclusive rights, which would be more expensive to obtain than non-exclusive rights. Filmmakers must also determine a duration for the permission. Limited permission or one-time use may be cheaper than permanent permission in perpetuity. And the geographic scope of the permission also matters. Permission for worldwide distribution on all platforms could cost more than a more limited area of release.
As with all agreements, it is best to get the final permission to use the work in writing. That protects the filmmaker and can act as evidence in court should a conflict arise.
Principles of fair use
Aside from public domain content and material for which a filmmaker gets permission, the other approach to using copyrighted material is to claim fair use of the content. The concept behind fair use is that the public has a right to use a portion of copyrighted material in order to comment on or criticize it. In modern law, Section 107 of the Copyright Act of 1976 states “…the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” The law adds “news reporting” to the list of acceptable fair use instances. That protects journalists in many cases and can apply to filmmakers, particularly if they consider their work to be of a journalistic nature. Also added is “teaching,” which again can apply to documentaries that consider themselves to be educational.
The section goes on to state there are four factors to be considered when deciding whether a particular application is fair use. According to the act, those factors are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is 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.
The first factor targets how the copyrighted material will be used. Courts have ruled that when the new work is transformative of the copyrighted material, a fair use condition can exist. In other words, if the original material is being made over as part of a new creative work, that would be an instance of fair use. But if the material is taken wholesale and dropped into the new work to serve the same purpose it does outside the work, that may not be transformative and not make a strong case for fair use. Also in this factor, usage that is intended purely to make a profit will not make as strong a fair use case as usage that aims to educate or enlighten without a profit motive.
The second factor is vague, but the courts tend to give wider fair use latitude to less creative work and view it with a narrower scope for more creative work.
When considering the amount used in relation to the copyright as a whole, the less copyrighted material used, the easier it is to make a fair use case. Using five seconds of a 90-minute movie can be argued as fair use much easier than using four minutes of a five-minute song.
The final consideration looks at how much of an impact the fair use instance has on the value of the original copyrighted work. If the material being used in the new work substantially reduces the desire to see the original work, thus lowering its value, that is unlikely to be viewed favorably as an instance of fair use.
It is not specifically mentioned in the law, but the notion that citing the source material is enough to allow fair use is often claimed. However, it is not supported by case law. The four factors above tend to determine the basis for legal decisions. Citing the source of the copyrighted material in the new work does not have an impact on the four factors to be considered.
Life rights and personal stories
The First Amendment protects journalists telling the stories of real people. The courts have long held that people do not need to give their consent to be covered by the news media. Logically, if the opposite were the case and journalists needed permission to cover newsworthy people, no one who would see himself ever put in a bad light by coverage would allow it. So journalists never acquire life rights for the people they cover. Filmmakers doing journalistic work can safely assume they carry the same First Amendment rights to use the stories of real people without permission or payment for rights.
Facts that are in the public domain, such as in the public record, are available to journalists, filmmakers and the public in general with no need to pay for rights. Someone doing a film based on these public records has no expectation to obtain the life rights of people whose information is contained in those records.
What a life rights agreement with a character in a documentary can do for a filmmaker is two-fold. First, it is a legal document in which the subject promises to work with the filmmaker to provide information and to release the filmmaker from any claims that might come later from using that information. The other purpose life rights can serve for a documentary filmmaker is in the event a fiction filmmaker wants to tell the same story. In that case, a life rights agreement is more likely to compel the fiction filmmaker to work with the documentary filmmaker and make an adaptation deal for the documentary.
Most commercial journalism operations purchase libel insurance to protect themselves from lawsuits and claims. Though they work under the assumption that they will not be found guilty of libel in their journalistic work, the insurance helps cover legal fees (because all journalists live by the maxim, “They probably won’t win, but anyone can sue me for anything anytime”) and settlements, should that be more cost effective.
Filmmakers have more exposure on the legal front because their First Amendment rights aren’t always as clear cut as their journalistic cousins. Errors and omission (E & O) insurance provides protection in libel cases, but also in cases of contract disputes, copyright violation claims, music clearance mistakes, invasion of privacy claims and more. The insurance is often bought near the end of production and is usually required for festival play or public exhibition (when claims are likely to arise).
Insurance can be taken out at the beginning of the production to protect the filmmakers from liability claims, equipment loss, workers compensation claims and more. This insurance is highly customizable to be fitted to the production.