Fair use and documentaries

By Mark McKenna

Thanks to Eric for inviting me to post here. It’s my first real blogging experience, so I’m hoping it goes smoothly.

Most of the press related to copyright law these days has to do with filesharing. There is good reason for that – filesharing is a big economic concern for major studios, and there have have been a number of high profile cases on the subject (which seem to have had little effect on user norms).

But there are many ways in which copyright impacts consumption of much less glamorous (but likely more important) material. The status of the well-known documentary Eyes on the Prize is a great example.

As most of you probably know, Eyes on the Prize is one of the most famous accounts of the civil rights movement. It first aired on PBS in 1987, and according to Clayborne Carson, a Stanford University history professor and editor of Martin Luther King Jr.’s papers, remarked that “it is the principal film account of the most important American social justice movement of the 20th century.” For more information about the film, go here.

Unfortunately, despite the film’s importance, it has been unavailable on video or television for the last 10 years. Why? Expired copyright licenses. Apparently the film’s creators secured licenses to use a variety of material, such as news footage, photographs, songs and lyrics, including Happy Birthday, which is included in some of the footage. Yes, Happy Birthday is under copyright. Congratulations, you all may be copyright infringers.

Well, at least some of the licenses expired in 1995, and the film’s producers could not afford to pay the renewals. Thus, people who want to view the documentary (which in and of itself likely counts as fair use) have to search for old copies, largely in libraries and/or archives.

Lots of other people are really outraged at this story because it represents all that is terrible about copyright law – the way it locks up important pieces of our cultural heritage in the name of incentives to create new works. What it made me wonder is why the film’s producers had to license the works they used in their documentary in the first place. The answer? The modern fair use test.

As the law currently stands, the fair use test turns almost entirely on the question effect of the use upon the potential market for or value of the copyrighted work [technically there are 4 factors, but the other factors tend not to do much work, as Barton Beebe seeks to confirm empirically). The problem with that test is that it imports futurity into the equation – the issue is not simply whether the use has an effect on the current for the copyrighted work, but whether it might have some effect on a hypothetical future market for the work. It’s also somewhat circular – use of these materials in a documentary is likely to have an effect on the market for licensing works for use in a documentary if and only if the general rule requires documentary film makers to license the works. If there were a different rule, perhaps one that categorically exempted certain kinds of uses like this one, then there would be no market for licensing to documentary film makers and thus no effect on a potential market.

But of course we can say that about any sub-market, with the possible exception of parodies. So the end result is that, without creating categorical exemptions, the fair use test has the potential to swallow up just about all non-parody uses. That is particularly true in the digital age, when the costs of setting up niche markets continues to fall.

This concerns me quite a bit. If I were advising a documentary film maker, I think I would have to conclude that very little of what she did could be deemed fair use. Thus, she would have to pay to use any materials she included, even though the chances of her making any money on the documentary are very small (Farenheit 911 and March of the Penguins notwithstanding). This would seem to be a disincentive to create documentaries, despite their social value, and even though the creators of other works almost certainly didn’t create on the hope they would be able to license to documentary film makers.