- December 5, 2013 at 3:55 pm
I received a spam from an entertainment lawyer and was about to reflexively delete it when I saw the word “documentary” so I felt I should read it. From time to time I have clients who want to “lift” or “borrow” (seldom pay) for news footage since they figure it’s public domain, after all, it’s just news. Most of what I do is not for commercial release so until I read this email I felt it was in a gray area. I have never been able to afford E&O insurance so I stay clear of taking on risk for the client’s benefit and if I could afford it I wouldn’t trust the insurance company to not snake out of the claim and protect me. I am posting it here for the benefit of all since this question comes up from time to time on this forum and answers the issue clearly:
Question and Answer for this week:
Question about using news clips in a documentary: We’re producing a documentary about a major criminal case revolving around a bank robbery ten years ago and one of our producers has been collecting news clips for years about the case from CNN, America’s Most Wanted, Geraldo, etc.
We plan to use only a few seconds from each in a sequence to show how much interest the case generated. Can we just use the clips that were “ripped” from TV recordings, or do we need to get permission/pay/for each one individually?
Answer by Brandon Blake, Entertainment Attorney:
It certainly seems ubiquitous in feature films and documentaries to have the montages of breathless news reports about this or that subject as an easy way to introduce the audience to the topical or “real world” nature of the story.
Much of the confusion about the use of news footage actually comes from some of the special exceptions to copyright law that are available for the production of news footage provided for under the fair use doctrine of the U.S. Copyright Act. For television producers producing news programming, you can see one of my former articles here: <> for information about whether the fair use doctrine might be applicable.
For the most part fair use is beneficial to the producer of news programming, rather than those seeking to license news footage. While certain factors of the test would support the fair use of news footage, given that news programming is hopefully factual work rather than fiction, the greatest problem for documentary filmmakers is that a market currently exists for licensing news footage, which tends to negate the other three factors of the fair use test.
From a practical standpoint, the fair use defense is just that, a defense. That means that to prove that a usage of copyrighted material is fair use you have to go to trial. Most film and television distribution companies do not want to go nearly that far defending the distribution of a property, and generally do not want to take any risk at all.
For that reason unlicensed use of news programming, even a few seconds worth, will typically prevent a producer from getting E&O insurance. Over the years I have noticed that a lot of E&O insurance providers no longer review films and documentaries they cover, and so therefore a lot of unlicensed footage does end up getting into distributed works. Producers should not assume there is no risk, however, because the insurance companies are relying on the blanket warranties that the producer is signing. If it turns out the producer breached these warranty clauses in the E&O insurance contract, the insurance company will not cover the loss or claims, leaving the costs and liability with the producer of the project.
So although there is some gray area, generally anyone producing a film or documentary intended for commercial release needs to license third-party news footage. Some alternatives would be to check with stock footage houses to find similar, royalty-free footage, or to produce the footage in-house.
Commercial news footage, especially from the major networks, is expensive and it is licensed by the minute, meaning that 5 or 10 seconds is not a de minimis use. My firm has helped a lot of documentary film producers negotiate more reasonable rates, often substantially below the initial quote. Feel free to contact my firm for a quote if you decide to negotiate licenses with the networks.
– By Brandon Blake, Entertainment Attorney
About the Editor:
Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available online. https://www.blakewang.com/bblake.htm
About the Entertainment Lawyer Q&A:
The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.
- December 5, 2013 at 7:46 pm
Hah, I got that spam too, and deleted it.
It’s pretty clear. If you’re using footage that you didn’t create, you need to license it.
- December 6, 2013 at 6:30 pm
Not necessarily. I recently onlined a doc about a hippie commune started in 1970. We used LOTS of news clips, including Walter Cronkite. The news organizations wanted $30/second…a “discounted” rate. Yet these same organizations use other people’s footage for free…because it’s “fair use” and they are news…no need to pay.
The producers went over the doc with a fine tooth comb and found they could use most of the footage under the “fair use” clause. they did…the trick is to get a lawyer to protect you in these cases.
Little Frog Post
Read my blog, Little Frog in High Def
- December 6, 2013 at 7:55 pm
So much of Fair Use is contextual that the only way to be ‘sure’ is to have a qualified IP attorney review the final cut and sign off on it and get E&O insurance as a CYA move or license it (if you can afford it).
Similar to Shane, I worked on a doc about the comedian Lenny Bruce (“Looking for Lenny”, it’s on iTunes, Netflix, etc.,.. /shameless plug) and some things we didn’t have to license because of the context we used them in. For example, if someone in the doc references a specific event that is central to the plot/point of the doc and you show a clip of said event to illustrate that point then that clip might not need to be licensed. It all just depends.
- December 7, 2013 at 4:42 pm
This “fair use” debate has come up regularly over the years in this forum. The above explanation by the lawyer is probably the best, most concise, realistic interpretation I’ve seen.
The take away from this explanation is the word “defense”. It’s called the “Fair use Defense”… not a license to steal copyrighted works! So you just need to ask yourself one question, “Do ya feel Lucky? Do ya?” Chances are you will get sued, and good luck with your “defense”.
So, despite Shane’s and Andrew’s examples of what they got away with… I’d be EXTREMELY cautious about including unauthorized copyrighted clips in your documentary.
- December 13, 2013 at 5:17 pm
“YouTube goes nuts flagging game-related content as violating copyright”
I saw this and thought it was a timely example of how Fair Use puts the burden of proof on the person being accused, not the person doing the accusing. That’s even more underscored in this specific instance where YouTube’s currently policy is that you can dispute their automated content ID system but if you ‘lose’ three disputes (via some form of arbitration I assume) then your YouTube channel is shut down. The accusers, on the other hand, have no such penalties looming over head.
- December 13, 2013 at 8:07 pm
[Andrew Kimery] “I saw this and thought it was a timely example of how Fair Use puts the burden of proof on the person being accused…”
Some of this has to do with a swinging of a pendulum between the original intent behind copyrights expiring — ideas belong to “we the people” — and the rights of creators to keep making money off their creations. I’m not blaming anyone (for once LOL), just making the observation that once MP3s and Napster came along, rights holders became rabid about asserting those rights, even outside of music, and the pendulum has swung all the way in the direction of rights holders.
As a result, in PRACTICE, there is very nearly no such thing as Fair Use anymore. A MUST READ:
The Public Domain: Enclosing the Commons of the Mind uses a range war metaphor to illustrate the ways that rights holders are building barbed-wire fences around material that used to be understood as in the public domain. Some of it might have been legal for you to use a few years ago, but not now.
Fair Use : The Story of the Letter U & the Numeral 2 is an extended example of this. U2 had been sampling TV and music on stage during their extended Achtung Baby tour, but when Negativeland sampled U2’s sampling, they were sued into oblivion — unable to even talk about the case, because U2 asserted the rights to the letter U and the numeral 2 in this context — AND WON. The book is out of print, but worth hunting down.
I haven’t read this next one, but it looks worth a read: Reclaiming Fair Use: Putting The Balance Back in Copyright. The title itself observes that, right now, there’s no balance.
That principle is illustrated by Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back. Make no mistake: Fair Use is going to be harder and harder to establish in the near future.
In the meantime, I also can’t underscore Andrew’s point enough: Fair Use is NOT a law or set of laws. It is a PRINCIPLE, and by its definition, can ONLY be applied on a case by case basis. Some other guy’s use of material may be okay, but YOUR use of the exact material could be infringing. It’s case by case, and as Andrew observes, you ARE ASSUMED GUILTY. This is civil law, and the rules are different.
Needless to say, people are successfully working with material under Fair Use every day. It’s not that it can’t be done. It’s that it can’t be ASSUMED, not even based on non-infringing uses of the exact same material by somebody else.
As Mark notes, “Do ya feel lucky?” — because your E&O insurance (you DO have E&O insurance, right?) may not cover you, and if you lose, the rights holders may own you forever.
[Ned Miller] “produce the footage in-house.”
Great advice from your spam-ttorney, Ned. If you don’t have the budget to secure the rights, or to hire a lawyer to with you, I’m a big fan of faking it. 🙂
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