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Fair Use Put to Good Use: 'Documentary Filmmakers' Statement' Makes Decisive Impact

By Patricia Aufderheide

In the nearly two years since IDA with other film organizations launched the Documentary Filmmakers' Statement of Best Practices in Fair Use, the rapidity of its adoption has been almost startling.

"I never anticipated, frankly, that the Statement would have such an immediate effect," says Professor Peter Jaszi, one of the facilitators of the creation of the statement and the lead legal counsel behind it.

The Statement clarifies when it is safe for a filmmaker to assert fair use, which is the unauthorized use of copyrighted material under certain circumstances. The clarification makes it possible for filmmakers to dramatically lower clearance costs while also honoring copyright ownership.

"Success has many mothers," says Michael Donaldson, past president of IDA and a member of the project's legal advisory board. "You can now see many organizations building it into their process, and starting their own projects depending on it." He pointed, among other things, to Stanford University's Fair Use Project (http://cyberlaw.stanford.edu/node/3136), which defends filmmakers so long as their fair uses accord with the Statement.

Most important, from a filmmaker's perspective, it is gradually becoming normal for gatekeepers to accept filmmakers' fair use claims, when backed by the principles and limitations articulated in the Statement. Some highlights include:

  • release of films that could never have been seen publicly, or possibly even finished, such as Hip Hop: Beyond Beats and Rhymes (Sundance, PBS/ITVS Independent  Lens), This Film Is Not Yet Rated (IFC Films and IFC cable channel), The Trials of Darryl Hunt (HBO);
  • savings of millions of dollars in unnecessary licensing costs by using the Statement as a tool in negotiations ($400,000 in one film alone, IFC's Wanderlust);
  • adoption into business practice in public television, e.g.
    • Independent Television Service (ITVS) endorses it;
    • WGBH producers give it out to their producers, and use it;
    • Public Broadcasting Service (PBS) has shared it with all general counsels and general managers in its network;
    • PBS and ITVS jointly used it to clear Hip Hop: Beyond Beats and Rhymes for broadcast;
  • adoption of the Statement into business practice by cablecaster IFC, and for case-by-case use in other cable companies, including HBO, Discovery Times and the Sundance Channel;
  • acceptance by the four major US insurance companies for errors and omissions insurance of fair use claims (AIG, MediaPro, ChubbPro and OneBeacon);
  • publicizing of the Statement among lawyers by The Copyright Society of the U.S.A., the leading association of copyright attorneys, which has showcased fair use and the Statement at regional and national meetings;
  • posting of the Statement on the Revver.com website's guidelines, extending this knowledge to online video posters;
  • endorsing and publicizing of the Statement by the University Film and Video Association, the leading association of film and video teachers in higher education.

Errors and omissions insurance may well be the best gauge of the adoption of fair use in general, and the Statement in particular, since insurance companies are both the ultimate gatekeepers for television documentary and also historically cautious to adopt practices that involve risk. And since fair use is a right that can be challenged as well as asserted, insurance companies have typically only accepted fair use claims with considerable negotiation, on a case by case basis, and have much more routinely insisted that rights be licensed.

The four companies most used by US documentary filmmakers--AIG, MediaPro, ChubbPro and OneBeacon--all announced programs between January and May 2007 to cover fair use claims. They first became aware of this issue for documentary filmmakers through meetings in Fall 2006, coordinated by American University law professor Peter Jaszi, P.O.V. executive director Simon Kilmurry and insurance broker Debra Kozee. Soon after, Kozee tested the waters with Byron Hurt's Beyond Beats and Rhymes, which has extensive quotation from hip hop video and music. She found several insurance companies newly interested, with all requiring a legal letter of opinion about fair use. The Statement made such a letter of opinion far easier to write than ever before. Jaszi complied, and Hurt's film was insured by AIG.

"I think AIG was more aware earlier of the value of the Statement because of New York geography," Kozee recalls. "I bumped into their rep all the time because our offices were around the corner from each other."

AIG quietly began offering coverage based on the precedent set by Hurt's film. MediaPro was the first to make public its acceptance of fair use claims, at the IDA's 25th Annual Celebration of Academy Award Nominees in February 2007. Soon ChubbPro also announced its willingness to insure fair use claims with proper opinion letters, and OneBeacon followed in April.

MediaPro made a special arrangement with Hollywood attorneys and with the Stanford University's Fair Use Project. If the Fair Use Project agrees to defend a filmmaker pro bono in case of lawsuit, or if several Hollywood attorneys including Michael Donaldson agree to defend the filmmaker for reduced fees--both decisions dependent on the filmmaker complying with the terms of the Statement--MediaPro agrees to pay legal costs if the defense fails. MediaPro also requires a complete shot list.

Other companies follow AIG in simply requiring a legal letter of opinion. ChubbPro offers IDA members a discount, although the nature of the discount depends on individual negotiation. ChubbPro's Ken Goldstein, worldwide media liability manager for Chubb Specialty Insurance, noted that in the past ChubbPro had been willing, in principle, to consider insuring a fair use claim, but since the Statement's release, he is willing to make that explicit. "In light of recent developments in the industry," he notes, "we have added a fair use endorsement to our media product library."

Insurers do not have standard pricing. Insurance policies are each negotiated individually, and filmmakers sometimes try several companies to find out which offers the best arrangement.

"I'm really pleased that documentary filmmakers now have this insurance option," says Kozee. "It's still important for filmmakers to recognize that getting the best insurance policy still requires negotiation."

The Documentary Filmmakers' Statement of Best Practices in Fair Use has had a profound effect on the documentary marketplace, still shy of its two-year mark. It will continue to make possible more and better documentary work, all without jeopardizing the strength of copyright ownership, if filmmakers continue to use it and tell others about its effectiveness.

Pat Aufderheide is the director of the Center for Social Media.

 

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