To aid documentary film makers in sorting out the sometimes murky doctrine of fair use, scholars at American University have developed an eminently helpful and powerful document entitled Documentary Filmmakers’ Statement of Best Practices in Fair Use (the “Statement” or “Best Practices”). While this document, strictly speaking, is not a law, it has been found by a great number in the entertainment, legal, and communication industries to be an accurate, reasonable, and reliable recitation of the parameters of copyright. For example Best Practices has been adopted into business practice by public television: ITVS endorses it, WGBH uses it, and PBS has distributed it to all of its general counsel and general managers. Cablecaster IFC has also adopted Best Practices into business practice. The Sundance Channel, HBO, and Discovery Times also use Best Practices on a case by case basis to validate fair use claims. The legal community has also recognized Best Practices: the Copyright Society of the U.S.A., the leading association of copyright attorneys in this country, has showcased it at regional and national meetings. The Stanford Law School Fair Use Project uses Best Practices to issue opinion letters as to whether particular documentary films have properly implemented fair use.  And perhaps most impressively, four of seven U.S. insurance companies issuing errors and omissions coverage, AIG, MediaPro, ChubbPro, and OneBeacon have accepted Best Practices an accurate recitation of the parameters of the fair use doctrine. These insurance companies will accept clients claiming fair use when an attorney endorses the use as supported by the Statement of Best Practices.
With this focus in mind, the Statement of Best Practices offers the documentary filmmaker—and by extension journalists, newscasters, bloggers, and all non-fiction reporters—four distinct categories that are likely to be regarded as fair use by the federal courts. This is not necessarily an exhaustive list of categories, but does cover the great majority of cases likely to be faced by the filmmaker.
Object of Social Political, or Cultural Critique
The first category “involves situations in which documentarians engage in media critique” by “holding the specific copyrighted work up for critical analysis.” This is the most basic and fundamental kind of fair use. It involves taking a quote, photo, or clip (audio or video) and using it for purposes of commenting or critiquing that quote or photo or clip. This is what scholars do when they quote other scholars for their research papers; this is what journalists do when they use stills-photographs from movies for their movie reviews; this is what you did in high school when you quoted Catcher in the Rye for an English essay. And nobody has to pay the original copyright holder for permission to do this.
Limitations: The use should not be so extensive and pervasive that it substitutes for the original work. For example, in Elvis Presley Enterprises, Inc. the 9th Circuit held that the producers of The Definitive Elvis, could not avail themselves of the fair use doctrine, by in large due to the excessive and lengthy use of the original owner’s clips and music.
One of the most salient selling points on the box of The Definitive Elvis is that “Every Film and Television Appearance is represented.” Passport is not advertising a scholarly critique or historical analysis, but instead seeks to profit at least in part from the inherent entertainment value of Elvis’ appearances on such shows as The Steve Allen Show, The Ed Sullivan Show, and The 1968 Comeback.
But the federal court in New York came to a different conclusion in a case involving clips from a Muhammad Ali film. Right when Monster Communications was about to release its documentary When We Were Kings in 1996, the Turner Broadcasting System threatened to release its own Ali documentary entitled Ali—the Whole Story. Turner’s documentary used without authorization between 41 min to 2 min (there is some controversy) of Monster Communication’s Ali footage. Monster Communication owned clips from the 1974 title fight between Muhammad Ali and George Foreman, held in Zaire, sometimes referred to as the “rumble in the jungle.” Turner argued fair use. The Court agreed.
The Court held that as a preliminary matter the nature of the Ali clips as historically significant made it especially vulnerable to use by others via the fair use doctrine: “This of course is not to say that historical film footage loses all copyright protection, only that its character as historical film footage may strengthen somewhat the hand of a fair use defendant as compared with an alleged infringer of a fanciful work or a work presented in a medium that offers a greater variety of forms of expression.” It further found that Turner’s use was for a non-fiction a biography and while the biography was “commercial in nature, it undeniably constitutes a combination of comment, criticism, scholarship and research” which meets the transformation element. Finally the Court concluded the use of the clips was not excessive for multiple reasons. First the infringing clips running from 41 seconds to 1 or 2 minutes (there is some controversy about the length of the clips) represents “0.7 to 2.1 percent” of Turner’s film. “From any quantitative standpoint, the allegedly infringing use is small.”
“Second, the allegedly infringing footage is by no means the focus of” Turner’s biography and the Turner Ali movie is “quite different” from Monster Communication’s Ali movie. Last, the court found it significant that when watching the movie it was difficult for a lay audience “without prompting” to tell what footage in the respective movies overlapped.
Unlike the Elvis case the Ali court appears to concluded that (1) the use was not excessive, and would not damage the owner’s market share, and (2) that the use was appropriately transformative by offering articulable criticism of historical events, as distinct from mere entertainment.
Using Copyrighted Work to Illustrate a Point
The second category involves quoting words, presenting images, or playing sounds from a copyrighted work in order to “illustrate some argument or point that a filmmaker is developing.” Here the comment or criticism need not be specifically directed at the work being quoted or used but rather the work serves as a reference point to exemplify, compare, contrast, or illustrate some larger cultural or political point.
Limitations: Work should be properly attributed; but one of a number of uses; use should be no longer than necessary to achieve intended effect; use should not be merely employed to “avoid the cost or inconvenience of shooting equivalent footage.”
Unintentional Capture of Copyrighted Media
The third category involves use of a copyright work as an accidental or unintended consequence of filming original footage. Documentarians often find themselves shooting events they have no control over: subjects in the movie might spontaneously, turn on their radio, sing a pop song out-loud, wear a T-Shirt with text or a design on it, or pose in front of a movie poster. “Where a sound or image has been captured incidentally and without prevision, as part of an unstaged scene” it is permissible to use the footage to “a reasonable extent, as part of the final version of the film.”
Limitations: use should be “integral to the scene”; properly attributed; use should not be included “primarily to exploit the incidentally captured content in its own right”; in the case of music the use may not function “as a substitute” for a synchronization track. Mere “set decoration,” placed there on purpose will not ground fair use.
Using Copyrighted Material in Historical Sequence
The fourth category involves use of historical footage when use of this footage is unavailable for a reasonable licensing fee. Examples that come to mind illustrating this sort of use might be selected portions of a film of the Martin Luther King “I Have a Dream” speech, or motion pictures or photographs of the destruction of the Berlin Wall.
Limitations: film was not designed around the work; material serves critical illustrative function; no suitable substitute exists for material; material cannot be licensed for reasonable fee given budget of film; use no more extensive than necessary; film does not rely predominantly on the material; material properly attributed.