This Q&A was originally published in the Winter 2017-2018 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
Generally, using someone else’s copyrighted work in a film requires either a fair use defense, which obviates both permission and payment, or a license. We plan to address fair use in a future column, but suffice it to say that as an escape from the normal constraints of copyright protection, fair use is available in limited circumstances and subject to tight constraints of its own. These constraints include that uses usually must be relatively small and are best framed in contexts of comment and criticism. Acquiring rights from an archive that stands behind what it licenses eliminates the risk of relying on fair use.
Can investigating acquisition of a clip or other material by contacting an archive jeopardize a fair use defense? Yes it can. For one thing, it eliminates any hope of flying under the archive’s radar, which is not to say that an eminently defensible fair use loses legal protection just because a producer asked an archive for a price. But practically speaking, the archive will be placed on notice about a producer’s use that otherwise may have gone unnoticed. If the use is not eminently defensible, the archive might be more likely to make a claim than if the producer hadn’t made it aware of the use. Furthermore, fair use is an “equitable doctrine” that requires fair play. For example, should a producer use an archive’s research services to find a clip and then, benefiting from that research for which the producer has not paid, access the material from a different source, that may be labeled unfair and eliminate a fair use defense, which would otherwise apply.
Another risk is presented by licensing material from an archive while including on a fair use basis in the same documentary other material represented by the same archive. Some archives condition their licenses on a promise that none of the other material in their inventory will appear in the same film without a license – which would nullify fair use. This restriction may lie embedded in text that seems self-evident, such as, “Licensee shall have no rights to use any Archive material, whether or not included in the licensed material, unless specifically permitted by the Archive.” Archives sometimes will strike out this condition, however, when asked.