I attended the one on Copyright and Fair Use in documentaries. Norwegian producers are starting to test the law with a few cases on the same basis that has been developed and argued in the States. David Van Taylor, director/producer from Lumiere Productions in New York was invited to share his experience and the difficulties in using the Code of Best Practices in Fair Use, a document that clarifies when documentary filmmakers can use copyrighted material into their films without permission. An excellent move.
- How are the films limited by copyright, or worse, what are the films that filmmakers would like to make and cannot due to copyright law?
- Can we acknowledge that what we are doing is illegal and stop hiding in order to get away with it?
The questioning also led to the recognition that copyright is a balancing act because producers are on both sides of the equation (wanting to use material, but also protect their own). So the document was produced in order to create four categories which will justify and support the use of Fair Use:
- Category 1: Employing copyrighted material as objects for social, cultural critique, counter-arguments
- Category 2: Quoting copyrighted popular culture material to illustrate a point
- Category 3: Capturing something (TV/Radio etc.) while filming something else
- Category 4: Copyright material using historical using historical sequence
I find these categories hugely helpful in understanding how one would go about justifying the use of copyrighted material. It seems that our colleagues across the Atlantic have done a huge leap. Broadcasters have adopted best practice of Fair Use and insurance companies issue policies and act as garantors to broadcasters. Courts of Law have not made any official statements but they have not ruled against filmmakers either. So far no cases in USA have been rejected.
American media sociologists say it is about power. They have an amusing analogy for the situation “people crossing a busy road – look right and then left – not to check the traffic light but in order to see if enough people are wanting to cross.” Cars won't run over people if enough of them are crossing!
So maybe this is a lesson for us, UK producers, to stop being intimidated by the law, to credit the material used illegally and maybe add at the end of our films: “Brief quotations from this film may be used freely.”