Documentary Film and Fair Use

Imagine Filming Here and Clearing?

Fox Wants... Jon Else, Sing Faster $10K 4.5 seconds Shot in background PNAM?

Incidental Uses Until recently, incidental uses were not cleared

© History Can you copyright history? How can copyright clearance culture have a chilling effect on documenting history? Copyright=balance of limited monopoly and raw materials for future uses How does greeking or blurring change history or depiction of reality???

Fair Uses About 1-2% of original Transforms purpose of original Clips not “heart” of original Clips for commentary/criticism Big distro= E&O insurance E&O now accepts fair use

T®adema®k in Docs As long as not exploited or confusing=fair use

® in Narrative Sometimes fair use, esp. if depicting reality

Is Your Use a Fair One? Did you transform purpose? Amount taken appropriate in respect to nature of original? And, is it the “heart of original”? And, MARKET HARM Does the use serve public affairs or public interest Is cost of licensing too high? Can't find rights holder? Do you exploit the original and is it a derivative use?

Categories of Use 1.Copyrighted material as object of criticism or commentary 2.Quoting to make point or illustrate an argument (i.e. using fiction films to illustrate social change)...using for different purpose Attribution, length to make point, not used to avoid clearance 3.Incidental uses...cannot exploit, attribute 4.Historical sequence...illustrative, cannot be licensed, multiple sources

Lloyd v. Witwer (1929) Sig: you cannot protect general ideas/plot structures Sig: protected industry against accusations of plagiarism

Scenes a Faire Doctrine Legal concept for separating genre elements (ideas) from original contributions (expressions) Judicial test of similarity between narrative/genre elements that appear in film If characters are put in similar situations are there inevitable outcomes that cannot be protected by copyright?

Characters... Character names and other elements can be trademarked If character and story are one in the same, if they have merged, can be copyrighted also Developed characters thus become expressions If character is just part of the story, they cannot be copyrighted (but, still ®) You can parody these characters, but use only enough to “conjure” up the object of parody

Adapting from Real Life Author has right to plot details We can adapt real stories freely since they are public domain We cannot use an author's creative embellishments to real stories A sequence of events in a story can be considered original expressions

Woods v. Universal City Studios, Inc.(1996) Lebbeus Woods and 12 Monkeys (Terry Gilliam) “Neomechanical Tower (Upper) Chamber” Pencil drawing Injunction granted; big settlement