From archive footage to audio recordings, just about anything that can be created can be copyright protected. The one way to legally get away with using someone else’s copyrighted work without seeking permission (and paying a fee) is to claim fair use. To qualify, the use must fall under one of five categories: criticism, comment, news reporting, teaching, or scholarship and research. But, that’s only the first consideration and the defense isn’t as broadly applicable as one might think.
Many myths have emerged about fair use over the years. To help get to the truth, attorney Sylvia Strobel (of St. Paul, U.S.-based Lehmann Strobel PLC) and solicitor Michael Evans (of Faegre Benson Hobson Audley LLP, the London, U.K., office of Minneapolis, U.S.-based Faegre & Benson LLP) shed light on some popular misconceptions.
Myth: Filmmakers can claim fair use, if they use two minutes or less of a copyrighted work in a program.
Reality: No hard and fast rules exist regarding amount, which means even a few seconds could be too much to qualify under fair use. An assessment is based on both the quantity and substantiality of the material being copied. For example, notes Strobel, copying 10 seconds of a 30-minute program may not sound like much, but if that short excerpt constitutes the heart of the show, that might be enough to thwart a fair use defense.
Myth: Programs made for a pubcaster can argue fair use.
Reality: Strobel concedes that one factor to consider is whether a producer uses copyrighted material for a commercial or non-commercial purpose, but she’s quick to add that that’s not enough to warrant a green light on fair use. The purpose and character of the use is considered alongside the nature of the copyrighted work (i.e., published or unpublished, informational or creative), the potential effect on the market for the copyrighted work, and the aforementioned amount and substantiality of the use. No single factor is enough to support a fair use claim, she says, as all of these factors are considered together.
Myth: Copyright and fair use (or fair dealing) laws are uniform across the European Union.
Reality: Though the 15 members of the EU were supposed to incorporate a directive legislating just this by December 22, 2002, few have done so, even six months later. In the U.K., a few points have proven to be stumbling blocks. Evans explains: ‘We have a fairly liberal regime for research purposes. [However,] the directive specifies that the research must be not-for-profit – not for commercial use – which is generally interpreted to mean use by any commercial organization. That [pokes a hole] through our particular rights.’ Another difficulty has to do with including parody and caricature under fair use. They have never been considered an infringement of copyright in the U.K., so to suddenly include them in the law, even as an exception, is a significant change, he notes.
Myth: Anything available on the Internet is fair game.
Reality: With the plethora of material available online – articles, photos, graphics – some surfers have concluded that it must all be free. Not so, says Strobel. Works found on the Internet are entitled to the same copyright protection as everything else.
Myth: Pursuing the fair use defense will save money.
Reality: Not if you hope to sell your film internationally. According to Strobel, it’s necessary to check into the laws of each territory in which the program will be aired. ‘At that point, you should just go and clear the rights and skip trying to make it fit within fair use, because it’s usually cheaper [than hiring an attorney to do the searches],’ she says. Adds Evans, ‘In most instances, my advice to clients is ‘Don’t take the risk’. Provided what you’re doing is not going to offend or damage the rights owners, they will usually happily comply [in clearing the rights]. The alternative may mean added expense, injunctions and even losing your film.’