NYT on Fair Use and Documentaries

By Eric Goldman

The NY Times runs an article on documentaries and fair use. It describes the thicket of copyright clearances necessary to reuse film clips in documentaries, which can be fatal to a documentary project. It gives one example where a 2 minute clip costs $20,000. In other cases, the licensing agreements limit the documentary’s ability to comment negatively or to use the clip in an NC-17 film. In some cases, the license requires further permission for different distributions of the documentary.

The solution? Fair use could provide some breathing room, but it’s a notoriously dangerous doctrine to rely upon–especially in the context of revenue-generating documentaries. Fed up with the high licensing fees, one documentary producer went to the applicable studios and said: “$1,000 licensing fee or we rely on fair use and you get nothing.” 13 of 18 studios signed up, but that still leaves 5 plaintiffs. Further, this type of “take it or leave it” gambit could be especially risky when viewed by the courts. Fair use is an equitable doctrine, so judges may not be impressed by a documentary producer’s strongarm; and the offer of a license fee implicitly acknowledges a secondary market for the licensing of clips. (MIke Madison sees this differently than I do). On the other hand, if 18 permissions are necessary, then any one copyright holder could stop the project entirely or extract all remaining profits for itself, and the fair use doctrine could help prevent these hold-up games.

The article mentions some efforts to develop standards for fair use in documentaries. It would be a great win for the documentary industry if the studios could sign up to such a program. I’ll be surprised, however, if studios are willing to give up any control–that would be a major attitude shift. And without universal buy-in, the validity of any industry norms still will be subject to judicial review and possible disapproval.