All of these topics would require huge clearance budgets, some even greater than the budgets of the entire films themselves
The primary impetus for Pat and Peter creating this document (and leading the research to create it) was their discovery of the number of documentary filmmakers who were avoiding the usage of material they believed would put them at risk. Some recurring refrains from documentary filmmakers included: don’t cover any topics related to popular music; don’t cover any politics that would require you to use news footage; don’t cover anything related to popular culture; etc.
As Pat puts it, “Filmmakers aren’t waiting for people to censor them. They’re just going ahead and doing it to themselves.”
Based on these findings, Pat and Peter got funding from the Rockefeller and MacArthur Foundations. This was used to fund the extended research and creation of the statement of best practices.
The beauty of the statement of best practices is that it was created in conjunction with working feature film documentary filmmakers and the world’s leading legal scholars, to define, in simple words, what kinds of uses of copyright works fall under fair use. I used and referenced it in the making of my short film documentary “Mixed in America: Little Mixed Sunshine.”
I even had Pat watch the short to get her take on it. The prologue, in particular, contains a number of clips from music videos, old movies, and contemporary movies. Alongside the credits for the clips used, I also reference the Fair Use statement. So technically, could Disney or HBO come after me? Yes. But I followed the guidelines and went the extra mile to credit the clips used. So, I’m not losing any sleep over the “Mouse House” giving me a call.
The Big Five Filmmaking Scenarios
Now I want to address the top five areas where filmmakers run into trouble when using other people’s copyrights. This is based on my discussion with Pat and additional research. I’ll be using a combination of case studies where copyright violators went afoul of the respective copyright holders. And cases where the fair use appears to be categorically intact.
Trademarks and logos
You know how some reality TV shows blur out the logos on clothes? I used to think that was because the reality show didn’t want to give free advertising to the brand. But that is not the case. It turns out that it’s because of copyrights.
The first part of my aforementioned podcast 2-part interview was with New York documentary filmmaker Salima Koroma. I was interviewing her for something completely different, and I asked her how her morning was going. (You know, regular pre-interview chit chat.) She said it was hectic because she was meeting with her lawyers to go over all the clearances she had to go back and get for her documentary “Bad Rap.” Clearances she had no idea were needed. This pre-interview “small talk” led into a 15+ minute conversation that became its own separate episode.
For example, there’s a shot of Times Square in her film. In the background are all of these logos, musical posters, billboards, etc. According to Salima’s attorneys, they ALL needed clearances.
This seemed crazy to me. If anything seemed to fit under fair use, a 2-second shot of “The Lion King” billboard in the background of a documentary seemed it. Not only was it brief, but it was also incidental. These types of occurrence helped to inspire the work behind the CMSI-created document of best practices. Salima’s attorney’s response was that it’s better to be safe than sorry and get the clearances. Even if something technically fits under “fair use.”