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New Guidelines for Fair Use
By Ron Steinman

Fair use has long been a headache for the documentary filmmaker.

There is a new set of rules in town for documentary filmmakers. These are rules that apply to anyone who makes films, non-fiction or narrative. If you are a filmmaker, in any way connected to the business, or simply care about documentary films, run, do not walk to the following Web site: www.centerforsocialmedia.org/fairuse.htm. Here you will find a remarkably complete set of guidelines about fair use, quite often an element in a non-fiction film that ends up costing more than the film itself.

Called Documentary Filmmaker’s Statement of Best Practices in Fair Use and developed by a consortium of careful thinkers devoted to the art of the documentary, it is for our own protection. It is about time these rules are on paper for all to see.

It is worthwhile for everyone to read, digest, copy and attach to the bulletin board for frequent reference. Mostly the guidelines are easy to understand, though some parts are in a language only a lawyer can love. If followed, they will serve to keep filmmakers from potential problems and legal trouble. These rules are the best I have seen. At least they are rules and they are in one place in one document. Though not guaranteed to protect you from the danger of litigation, if you follow them, you should stay out of trouble. The guidelines will not be easy to follow. Why should they be? Making a film is not easy. Why should it be? One more thing to be conscious of will probably make for a better film and that is what we all want.

Often controversial, and rarely clear, at least in the past, fair use is a concept mostly misunderstood by everyone, except for a few lawyers who make a good living defining the vicissitudes of understanding who owns what. If not careful, the documentarian can find him or herself in a situation where they have to pay a great deal of money for the right to use another’s material, material collected on purpose, or inadvertently in a street scene, over the radio or on TV. If understood, and it does not take much to understand the guidelines, the “inadvertent capturing of material” and then the cavalier use of it, can get one into a lot of trouble. A filmmaker, no matter how careful, and no matter how germane a scene may be to his or her film, cannot blithely use copyrighted material, sounds and images, without, in limited instances, paying for their use or at least acknowledging the use of the material on screen or in the credits. Yet doing all that will not always absolve the filmmaker from paying the price of using someone else’s creativity.

In many years at NBC News and ABC News and as an independent filmmaker, fair use has always been befuddling. As producers, we thought the lawyers made up what we could or could not use. Then we thought they involved themselves needlessly in the creative process by telling us how to use a photo, to play a song, to show a movie clip, or whatever, in a way that befuddled us more because creatively nothing they suggested ever worked. I had many an argument with a lawyer over fair use because I considered one of my roles was to protect my production from outsiders. Lawyers were always outsiders who were there to protect the corporation, and, in their eyes, if at times the production had to suffer, they could live with their decision. With this new set of guidelines in mostly easy to understand language, and much of it, I am certain inspired and written by lawyers, they have redeemed themselves. If I can understand everything in these pages, the lawyers did inspired work in making what is often murky, clear.

Here are a few examples. At NBC News working for Sunday Today, I produced a segment about senior citizens who rode motorcycles as their hobby. I opened the piece with a long sequence from The Wild One starring Marlon Brando to show the contrast between youthful wildness and the old timers riding huge machines that looked as if they were tooling around the countryside on foam rubber mattresses. Though I credited the sequence, we paid nothing for its use. It helped make the piece because it grabbed the audience’s attention from the start. In a sense, I pirated the scenes from the movie. No lawyers from NBC or outside the network came to call and said cease and desist or else we will be liable for a large rights payment. Today with so many opportunities to make money, and with so many watchful eyes, that would never happen, rightfully so. If these new guidelines existed then, that would never have happened.

At ABC News Productions, I produced the Frank Sinatra obituary for A&E after we learned he was seriously ill. A&E would only use the one-hour documentary when he died. Having an obit ready is a common practice. There was one proviso. To be free of rights issues, the documentary could only play once. It could never play again. Justifiably, fair use made its presence felt. Because we used Frank Sinatra’s songs and appearances from many different sources, to air it again under any circumstance would have been too costly. We would have had to pay high fees for everything we used of Sinatra from his movies, his recordings and his TV shows. ABC’s and A&E’s lawyers were all over this problem and advised caution, which turned out to be a very good economic decision for everyone.

At Douglas/Steinman Productions, we have completed almost all the shooting for our documentary, “The Dance Goodbye,” a film about Merrill Ashley, a prima ballerina at the New York City Ballet who no longer can dance. She is the last of the George Balanchine ballerinas and a wonderfully articulate subject, not only about dance, but also about life and the change we all face when we are unable to do well what we once loved. We have one problem. Ballet is central to the film. That means each time you see Merrill dance we must pay performers on every level – dancers, musicians, conductors and choreographers who are under union and contractual obligations The cost to complete the film is thus expensive. Fair use can only take us so far. Using only a few minutes of dance in a film about dance would be a disservice to Merrill Ashley, to her fans, to dance itself, and finally to the film. We know that and as much as we would like to use freely footage from Ashley’s dancing life, we understand it makes no sense to buck the system. Now with this new set of guidelines, it is clearer than ever that there are rules we should never break no matter how much we would like to.

The lesson for any of us making films is that when using something created by someone else, use it carefully, sparingly and always credit the original work. Increasingly copyright is under attack by those who believe everything in this new digital age should be free. This document makes clear that copyright is sacrosanct. Defying or denying ownership of a creative work is wrong. Filmmaker's must note when someone else’s creativity is part of a new film. Attribution of copyrighted work and the judicious and limited use of another’s material are key components to keep a filmmaker safe from a lawsuit.

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At NBC News for 35 years, Ron Steinman was bureau chief in Saigon, Hong Kong and London, was a senior producer on Today and wrote and produced for Sunday Today. At ABC News Productions, he produced and wrote documentaries for A&E, TLC, Discovery, Lifetime and the History Channel. He has a Peabody, a National Headliner award, a National Press Club award, a International Documentary Festival Gold Camera Award, two American Women in Radio & Television awards and has been nominated for five Emmy's. He is a partner in Douglas/Steinman Productions, whose latest documentary, "Luboml: My Heart Remembers," aired on PBS' WLIW/21 and the History Channel in Israel, April 29, 2003. He is the author of, "The Soldiers 'Story", "Women in Vietnam," and most recently, "Inside Television's First War: A Saigon  Journal," University of Missouri Press, 2002.

 

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