Producing : Producers with documentary experience? by Jill Remensnyder

Always give credit when you use a clip or anything else where credit is due. Generally it can be simply the credit in the lower left hand corner of the clip as it is showing and then in the credit roll. Do not add "thanks to" or similar phrases that imply permission was given. Keep in mind that whether a use is fair can be a complex question, and fair use in a documentary does not necessarily mean fair use in another context, like advertising. Always best to work with production legal counsel to evaluate and advise.

This response is general information, not legal advice applicable to any specific situation. No attorney-client relationship has been created by this conversation.

Thanks Dane!

As an entertainment attorney, I will say You CANNOT LEGALLY use clips any photos, music or video footage from ANYWHERE in your documentary without written consent and/or licenses, unless you can prove they are in public domain. "Fair use" is a VERY RESTRICTED exception to copyright infringement, and documentary use in general simply does not fall within the exception. Be aware that, along with monetary damages for copyright infringement, for every item actually registered in the copyright registry, statutory remedies include minimum damages without proof of injury, and possible criminal liability. Also the fact something is not registered in the copyright registry does not mean that it is in public domain. In fact, if it has been created since 1978, 99.9% likely it is not in public domain. So you are best advised to track down copyright and negotiate consents/licenses and for those you can't figure, hire a law firm to clear copyright or tell you it cannot be done or is in public domain.

Shadow, I'm a little unsure about some of that. To my way of thinking (please correct me if I'm wrong) when a creator posts his/her work to YouTube - freely available to all - that work is in the 'public domain'. What am I missing here? Obviously, credit must be given where credit is due. I see this too on lots of sites offering royalty free music - my assumption is that the creator wants you to use his music (with credit given). I see other sites that restrict downloading clips so I assume they do not fall into the 'fair use' category. What am I missing here or are you just trying to stir up a little business for attorneys?

Doug Nelson When you post on YouTube, you give Google/YouTube a license based on their user agreement. They get to show your content or not, as they please, and they will pay you for that in advertising split, again based on their terms. You possibly lose the practical ability to enforce your copyright (because it can be downloaded from YouTube despite their efforts every few months to stop that) but you still own the copyright. So if it shows up in a documentary who didn't get your consent, you can sue. "Royalty Free" music is not free or in PD - you usually buy a one-time license and don't have to pay them a royalty or report usage to performing arts societies like ASCAP or BMI. Some people will permit you to use it under other terms (ie. give me credit, certain "Creative Commons" licenses, etc), but if those terms are breached, you have breached copyright and are risking all the penalties therefore. "Fair Use" is confined to purposes like criticism, comment, news reporting, education in classrooms, scholarship, or research, and is highly qualified within those categories. Items in a documentary which by its nature will end up being sold or streamed where someone pays for it generally don't qualify for fair use. But it does depend on the specific use of each item in the documentary and the nature of the documentary itself. They simply need to confine themselves to the items they can get consent to use. Anything else is dangerous. There are legitimate reasons for the "fair use" exception; wanting to lower your budget and not pay for a license is not one of them.

It's true that fair use is a defense to copyright infringement and that posting work on YouTube does not put that work into the public domain. But there is ample precedent for fair use in the documentary context. The thing to remember is that whether fair use is likely to provide a defense is an extremely fact-specific question. Unlike with licensing, each proposed fair use must be evaluated carefully. But sometimes there is no other way to make the film. See, for example, the documentary Los Angeles Plays Itself (https://www.imdb.com/title/tt0379357/). It consists almost entirely of clips, most of which were not licensed. An experienced attorney can evaluate and often assist in adding context that can support fair use without harming the filmmaker's vision. Since a legal opinion will be needed to get E+O insurance for any film that relies even in part on fair use, it's certainly not trying to "stir up business" to recommend working with production counsel.

The clips we are using from archived news stories and videos people have posted on YouTube help support the argument we’re making in our doc and from everything I’ve been reading and watching online (and what one of our producers with a law degree had to say), it falls under fair use.

Just to clarify- I’m not posting anything on YouTube…

Shadow - it's become way too complicated for a small time country boy like me so I'm returning to retirement. I just don't need the aggravation. C ya'll.