Is the music in your film incidental or non-incidental?
If a documentary filmmaker is shooting a film and a song is playing in the background of the location is it possible to claim fair use and if so for how many seconds?
“That answer has a couple of questions, “responded Lisa “depending on how the music was captured”
Incidental vs. Non-Incidental
The first example she gave is of a filmmaker shooting in a bowling alley and music happens to be playing in the background.
“If you capture it completely incidentally and you don’t edit the scene to the music, it’s just there, the filmmaker, as a director didn’t make any creative choices about the music, it probably is going to be fair use under our incidental tests.”
But, if is not incidental?
“If the filmmaker had any creative decision to what music was being played or how long it was being played, how loud it was, then it wouldn’t be fair use. It’s a little different, it’s a lot different than our three step test, it’s really isn’t incidental use, purely incidental or not.”
Incidental vs. non-incidental is a very important part of the fair use doctrine.
Michael and Lisa just worked on a fictional film by a very famous director which was shot outside a music festival. A lot of the music from the festival bled through during the shoot into the dialogue scenes. There was no way to separate it out.
“We said it was fair use as long as it was contained only as background.” Michael answered. “as they were talking not used as any kind of underscore which was what Lisa was talking about earlier. Using somebody else’s stuff as underscore is never fair use in the US.”
What about using news clips in films?
Another question filmmakers in my class ask is about using news clips in their films. Can they claim fair use or should they buy them?
“The test is exactly the same.” responded Michael referring to the incidental as opposed to non-incidental qualifier. “That test isn’t just for feature films or just for photographs or just for sculptures, it’s for anything you use in your film and documentaries often use news footage.”
He pointed out that a filmmaker needs to avoid the temptation of using news footage to tell or advance a story. That would not be allowed under fair use. The news footage needs to illustrate the story.
“You can’t get lazy and say, I will just stick in the ABC story that night that says: So and so got killed. You have to make that point by some interviewee or someway, and if it is appropriate, you can tell it straight from the news footage. A lot of the docs we work on use news footage, it always has to illustrate or support a point you are already making.”
Is it possible to film a theatre play and claim fair use?
Yes, if the use of the play is to illustrate your point you are making.
A documentary they were assisting was about a local theater that showed how the creation of one of their productions. It started with casting of local talent, building sets, rehearsals, etc. Songs were used all the through. Then, they go to opening night which, of course, is an actual production of the play.
But, it turned out that was ok to use.
“If you have to make a documentary what it’s like for a local theatre to put on a musical, you can’t tell that story without showing something of opening night.” Michael explained.
“You just have to make sure that you don’t overdo it. You are not substituting footage for entertainment value, but rather to show what it is like, when local people, non-professional decide to put on a major Musical.
“We did a wonderful thing for Michael Yuri, he runs a contests in Texas… where high school students read scenes from famous plays. Obviously, if you are making a documentary about this phenomenon in Texas, you show them reading the scenes.
“There is a lot of circumstances with excerpts from plays, but the rules are exactly the same: Plays, music, film, broadcast television, cable shows, architecture, photos, the rule is:
“Are you using it to illustrate the point you are making, the use is reasonably appropriate and is that connection clear?”
3 Questions To Ask When Using Material From Other Sources in Your Film
by Carole Dean
Entertainment attorneys Michael Donaldson and Lisa Callif are the leading authorities on fair use. Michael, in fact, is often referred to as the “fair use Guru”. His “Clearance and Copyright” is used in over 50 film schools and has become the standard reference book for the industry.
“The Fair Use Guru” – Entertainment Attorney Michael Donaldson
I interviewed them recently on my podcast The Art of Film Funding and Michael provided me with insights and questions that a filmmaker should ask about fair use as it relates to their film. Once you have the answers, you can use fair use comfortably in your film.
Michael says you need to ask these three questions:
Are you using somebody else’s material to illustrate a point you are already making in your documentary, pretty simple- yes or no.
Did you only use what’s reasonably appropriate? That’s got a lot of elasticity in it and that’s good.
Is the connection between the point you are making and the material that you are using illustrated clearly to the average viewer?
“If you get a yes to all three questions,” Donaldson says, “you land up in what we call a Safe Harbor. It’s unassailable. There is no way anybody is going to successfully argue that it’s not fair use.
“There is still a lot of fair uses: You know if the connection isn’t all that clear but when you explain it, it’s there, if you have a little bit of wobble room in the length that still might be a fair use, but it is not that solid safe harbor where nobody can get you.”
You may remember there was a lot of publicity lately about the film, “Los Angeles Plays Itself” saying that no one thought it could be released on DVD. The documentary was made up of clips from other movies showing how Los Angeles was portrayed in each one.
Michael Donaldson got involved and cleared it. I asked him about this film how he was able to clear it.
“It’s funny because this was far from the most difficult film that we have had by a long shot. It was a good example of the three questions.
“Thom Anderson (the writer/director), from start to finish talked about how Los Angeles plays itself in movies and he would mention specific films. And as he mentioned the films, clips of those films played over his voice.
“You never see his face the entire film. What you see is clips from all these movies and they just keep rolling for 90 minutes. Clips from other films, but each one separately, individually, is an illustration of what Tom Anderson is talking about so it’s a classic case for safe harbor fair use for each and every clip in that film.”
I asked Donaldson if this was a good film for us to watch to visually see what is Safe Harbor for fair use.
“It’s a very good film to watch for very safe fair use. Another one is “Room 237”, where 1/3 of the film is clips from the “Shining”, but each clips illustrates exactly what the interview subject is talking about. Very safe.”
Michael Donaldson’s “Clearance & Copyright” is available as an ebook with film clips to support his simple as 1-2-3 questions. It also comes with many downloads of contracts and agreements you need for your film. http://www.donaldsoncallif.com/books
How do we see our future and then meditate it into being?
by Carole Dean
Back in the 70’s I was a big fan of Rajneesh, an Indian mystic who taught the importance of self-awareness, meditation, and creativity. (That was before he moved to the US and became addicted to Rolls Royce’s.)
One of his saying that stayed with me the most is:
Sitting silently, Doing nothing
Spring comes and the grass grows by its self
Luke 12:27: “Consider the lilies of the valley, they toil not nor do they spin, yet even Solomon in all of his glory was not arrayed like one of these.”
Wait a minute! What about working to till the soil, plant and water the seeds? You mean that you can sit and think about the grass growing and it does? Or, are you saying that your mind can control things? Are you saying that we have the power to imagine something and actually cause it to happen? Could this be true?
This is as good as a Koan. (a paradox to be meditated upon that is used to train Zen Buddhist monks to abandon ultimate dependence on reason and to force them into gaining sudden intuitive enlightenment)
Then, there is the great Bible saying,
Luke 12:27: “Consider the lilies of the valley, they toil not nor do they spin, yet even Solomon in all of his glory was not arrayed like one of these.”
What does this mean? That we can have what we want by just being? Or is it because the plant knows who it is or what it is, it just becomes its self? Is it possible that we are much more than we realize? Do we have powers that we are not using? Can we sit and meditate on something we want and bring that into our future?
Jack Canfield, author of the inspirational book “Chicken Soup for the Soul”, held a funding party at his home for a filmmaker we sponsor at From the Heart. During a break at the event, I ended up in the kitchen alone with him and he told me that when he moved into this multi-million dollar home he had no furniture at all.
He and his wife took a leap of faith. They bought the house and knew they could furnish it properly with future income. Now, they had so many works of art that they have to store half of them and rotate them in and out of the house.
He is also the same author who “decided” to sell a million copies of the first Chicken Soup for the Soul book. The story goes that he began to meditate on selling a million copies. He saw himself incredibly rich and successful from the sale of this book. Fast forward to one day when he was speaking at a book signing and a saleswoman for the National Enquirer said, “Why not run an ad with us?” That did it. That took him to the sale of the million books.
So, how do we do this? How do we see our future and then meditate it into being? How can we use our minds to create our future? We know the possibility is there because you hear it at every Academy Award ceremony,” I envisioned myself receiving this award when I was 5 years old and now, here I am.”
Is it an inner knowing that you can do this that makes it work? What if all of us could do this? What if we had the power to intend something and actually make it happen? Then we could fund our art, have a great time with our family and make an excellent living. Actually, there are a lot of people in the film industry who do just that. So where do I sign up? What’s the first thing I need to do?
Perhaps it’s as simple as believing that you can do it. Perhaps the grass grew by its self because it knew it was grass and knew intuitively how to grow. Perhaps the lilies knew what lay ahead for them; they saw themselves in their full glory and just became their full selves.
Jack Canfield owes his success to not just a great idea, but his belief in that idea and believing it would bring him success.
What is it that you can do to bring yourself to your full potential?
Think on this: what is the right action for you to take to become your true self, with all of your talents in full bloom. Can you do less and think more and achieve even more success than you imagined? Just who do you think you are?
It’s a common question that we ask of independent filmmakers submitting their documentary, feature, or short film to the Roy W. Dean Film Grant. We find that 80% of our applications do not answer this important question.
Do you know your audience?
Some say my audience is “everyone” which I encourage you not to do. Judges will drop your proposal like a hot potato!
Some say “men and women from 18 to 48.” That’s too broad. We want to know everything possible about this audience. If you had a description for your typical audience member like a “soccer mom in Indiana”, we would love it.
Why should you get so up-close-and-personal with your audience? Your money for your film is now in their hands. You will need to get dollars from them for research, for production, and again for post. Plus, they will pay to download your film and probably help you put people in seats for theatrical on demand.
Ok, Carole, then how do I find my audience for my upcoming project? Start by knowing more about your present audience. These are fans of your other projects (hopefully you’ve got their names and emails or kept in touch with them on social media)
On a recent episode of my podcast The Art of Film Funding, Erica Anderson of Seed & Spark suggested to “get the names of 10 or more of your current fans and ask them questions.” Mine your audience.
You want people in your database from different walks of life, who are not filmmakers, and who love the subject of your upcoming film.
Here are some questions to ask:
What social media platforms do you hang-out on?
Where do you engage with people online?
What kind of news do you pay attention to?
What kind of music do you listen to?
What blogs you follow?
What organizations do you belong to?
How do you spend your free time?
When you watch movies, how do you watch them?
Do you go to the theatre?
Do you primarily stream movies to your TV from some device?
Do you watch movies only on your laptop or your mobile phone?
With the answers to these questions, you begin to understand where you will reach others for your new audience.
Now you know where they hang-out online, how to speak to them based on what news they read and what blogs they pay attention to. You get a sense of how they pay attention to things.
Erica said “a headline from New York Times for instance is very different than a headline from BuzzFeed.” Now you have a better way to communicate with your potential audience.
Knowing what organizations they belong to gives you an idea of what organizations you can join. You can begin to chat about your film because the content of this organization should be concerned about the same issues.
This same info can give you names of nonprofits to contact for strategic alliances if you are making a documentary and possibly for a feature.
Erica also says that “The last piece really is where does your audience see their movies? If it’s primarily on their laptop, that could change the way you are going to shoot the film, that could change the camera you choose, and how big your production value needs to be. So, it can ultimately change the budget of your film.”
This mining effort can pay off with valuable information, donations, or investments. Now you know what to put under audience on your grants and now you know what to do for marketing your film, tweeting it and how to write your posts on social media.
You are talking to your audience, so give them a name. I want you to know them like a character in a film.
Creating Ideal Audience Profile is Essential in Marketing Your Film
Jason Brubaker is an expert in independent film distribution. He has put together a new educational site, howtosellyourmovie.com, which offers a step by step distribution system for marketing your film. He’s also a donor to the Roy Dean Film Grants.
In his interview with Carole Dean on The Art of Film Funding podcast, he showed a unique way of how to create an avatar to represent your film’s potential audience. An avatar will represent the likes, characteristics, and demographics of the audience or donors you are trying to reach. He explained how if, for example, your film involved frozen yogurt.
“Once you figured out that, hey, I am going to go after college age women who love frozen yogurt” Jason explained,” that’s even still pretty broad, but once you start to drill down a little bit more, then you start to find these communities, then you can create as you said a database of influencers.”
The next step would be getting out a spreadsheet and finding the top 50 blogs that are geared towards college age women who love frozen yogurt. But, he points out, that it’s better to be as detailed and specific when creating an avatar.
“Ok, I want college age women who love frozen yogurt, who have a preference for chocolate yogurt, and then I would go down even more and say, okay, and they have a sister. All of that kind of stuff factors into the thought process.”
“Once you create an avatar, the next step is to give it a name, okay, like Jo. I am marketing for Jo because Jo loves chocolate frozen yogurt, she is college age and she has a sister. So, how many Jo’s are in this world? Well there is a lot of Jo’s. “
“So, how do I find the Jo’s, and those factors all feed into refining exactly who you are talking to. Because this is what marketing really is. It’s just a conversation where you are connecting with people who have similar interests.”
You can check out the entire podcast below. Jason and Carole Dean also cover:
How to Build Buzz around Your Film
The Importance of Film Festivals in Marketing
Distributing Your Film to Schools, Cruises, and Oil Rigs
Expanded Crowdfunding Opportunities for Fiscally Sponsored Filmmakers Through New Partnership
Oxnard, CA From the Heart Productions, a 5.01(c)3 non-profit which has helped filmmakers raise millions of dollars for their projects through their fiscal sponsorship program and in partnership with Indiegogo, is now partnering with crowdfunding platform Seed&Spark to give filmmakers another great option where they can crowdfund and benefit from being fiscally sponsored by From the Heart.
“We had many of our filmmakers inquire about crowdfunding with Seed&Spark which focuses exclusively on helping filmmakers raise money.” said Carole Dean, president and founder of From the Heart Productions. “Since we share the same focus at From the Heart, this partnership is an excellent match.”
By being fiscally sponsored by From the Heart, a filmmaker is able to use their non-profit status for their project. This gives donors a tax deduction for donations which is a powerful incentive for them to contribute to the project. Working with From the Heart as a fiscal sponsor and crowdfunding with Seed&Spark, affords filmmakers many other advantages to help get their films made:
Guidance and planning in creating a crowdfunding campaign from both From the Heart and Seed&Spark.
In addition to financial contributions, a project’s supporters can also loan or gift the items a filmmaker has listed on their Seed&Spark WishList.
Discounts on marketing services, production insurance, hard drives and more from From the Heart fiscal sponsorship program donors.
Seed&Spark has added From the Heart Productions to their partner page. From the Heart has two projects already working with Seed & Spark. Once they have three projects that are raising or have raised funds with them, Seed & Spark will create a curated crowdfunding page for From the Heart.
Fees are a flat 3% credit card fee and Seed&Spark’s fee is 5%- however supporters are automatically offered the opportunity to cover Seed&Spark’s fee at checkout and the majority of people keep that box checked which means platform fees are usually less than 2%. From the Heart’s fee is 3%. Filmmakers get funded when they reach 80% of their goal and get paid after the end of the campaign.
For more information on working with From the Heart, please email
About From the Heart Productions
From The Heart Productions is a 501(c)3 non-profit dedicated to helping filmmakers get their projects made. Besides working with filmmakers to crowdfund and raise money for their projects, From the Heart also offers a film grant 3 times each year. For over 23 years, the Roy W. Dean Film Grant has given away to filmmakers $2,000,000 in a combination of cash and donated services. The grant is awarded to films that are unique and make a contribution to society. President Carole Dean is the best-selling author of “The Art of Film Funding” which is now in its second edition.
Many listeners wanted to know more and sent us questions. Kristen, Indiegogo’s New York based Manager of Film, was kind to give us the answers.
How far is press and publicity important for a crowd funding campaign? Filmmakers regularly write blogs and post updates during the campaign, but I am wondering can getting press articles written and video interviews about you and your film help the campaign and how does one go about it.
Press is great for getting eyeballs to your campaign page, however, that does not necessarily translate to contributions. It is certainly better than no eyeballs though! Since there are so many crowdfunding campaigns out there, the best way to get press is if you have a hook (i.e. some sort of press-worthy item attached)
What are the important things as a filmmaker you need to imbibe/ learn/ perform to become successful at crowd funding? Are there any special personality traits one need to imbibe?
Be genuine and passionate about your subject. This is what always shines through in successful campaigns. People give to people – not to projects. Social media is another trait to hone. It can be difficult, but building your audience and engaging with them will only help your career in the long run. Even beyond a crowdfunding campaign.
Does Indiegogo help all projects in their preparation for the crowd funding campaign? How is this choice made? Does the filmmaker approach Indiegogo or Indiegogo chooses projects whom they want to support with feedback and overall preparation for the campaign?
We are an open platform and will help any campaigns that ask for it. Film campaigns can reach out to me at
From the Heart Productions is a partner with Indiegogo and has helped filmmaker’s raise over $1.7 million to date. We offer discounted crowdfunding fees, tax deductions for donors, and campaign assistance. For more information, our Indiegogo Information Page.
How much planning should go into your film’s Indiegogo campaign?
Are the perks you picked going to attract donors?
Have you created a plan to share interesting, relevant content?
To get answers on these questions and how to create a successful crowdfunding campaign, Carole Dean interviewed Indiegogo’s New York-based Manager of Film, Kristen Konvitz.
About The Art of Film Funding Podcast
From the Heart is a partner with Indiegogo and has raised over $1.7 million to date for filmmakers. Hosted by the president of From The Heart and author of “The Art of Film Funding”, Carole Dean, the weekly podcast focusing on bringing to filmmakers the best advice, knowledge, and expertise on film funding and filmmaking.
In this latest podcast, she interviews Indiegogo’s Kristen Konvitz. Her role at Indiegogo includes acquiring projects in varying stages and overseeing them through all stages of their campaigns. She is instrumental in building relationships between both established and up and coming talent.
Kristen reveals the three top tips to a successful crowdfunding campaign as well as details on Indiegogo’s new partnership with Vimeo.
You can listen to the entire podcast here
Three Top Tips for Success on Indiegogo
Kristen draws on the success of the Indiegogo campaign for Iron Sky for her 3 tips. Iron Sky has run two very successful campaigns on Indiegogo. The first raised over $160,000 while the second raised over $480,000.
Iron Sky called their three tips the “trifecta” (although, maybe after realizing its importance to their success, they now call it “The Holy Trinity”).
To stand out, you can’t just offer hats or t-shirts. Those are standard items and won’t really generate any excitement or buzz about your project. Offer perks that are very personal to the film, filmmaker, or story. Think of what would tie in to the film that you could not get any were else.
Some perks that are experiential will create interest in your project. Iron Sky offered a part in the film where you would be chased by a dinosaur. Even if you did not choose that perk and donate, it was shared by many on the internet creating awareness for the project.
Prepare yourself as much as possible for the campaign. That includes mapping out a campaign strategy for the content you will share. Plan out different photos, videos, interviews, as well as new perks that you will release during the campaign.
The content you plan and share for your project can’t be spam. It can’t be “support my campaign” or “donate now” over and over. It can include that every so often, but the content should be interesting and make people want to share it. It can include stories about the cast and crew. Photos of the project in pre-production. Also, include articles about events or news related to your project (Doing a documentary on fashion? Include related stories on fashion industry)
Iron Sky prepared videos in advance featuring a character for their film. It was like a mini trailer, but each was unique and increased interest in the project which lead to increased donations.
Indiegogo’s Partnership with Vimeo
Announced in January, this partnership was created to give filmmakers who raise funds on Indiegogo a chance to be seen. Indiegogo realizes that most films will not get a traditional theatrical or VOD distribution. This partnership allows eligible films to shown on Vimeo and get needed exposure.
Vimeo’s new Creator Fund will commit up to a million dollars in matching funds for select Indiegogo film campaigns in 2015. Vimeo will contribute digital marketing spend and social promotion for campaigns in the matching funds program and other selected Indiegogo film campaigns.
For these funds, Vimeo will get a 60 day digital exclusive for that film. It does not preclude the film later getting a theartrical release, for example, at a film festival.
The partnership is off go a great start. It has received 166 submissions so date. You can read more about the partnership at Indiegogo and Vimeo Partnership.
“Not The Same: Families After War” addresses the emotional challenges faced by those who care for their loved ones wounded in the wars of Iraq and Afghanistan. It is about military men and women who must now rely on their families to heal and to function.
The goal of this documentary is to create awareness of what it is like to care for our wounded, illuminate their “new normal” and celebrate the unsung heroes of war
“Stephanie is a passionate and very talented filmmaker who cares deeply about the subject of her documentary” commented Carole Dean, president of From The Heart Productions. “It is wonderful to honor her work and assist her in getting this important project to the screen”
The Roy W. Dean Grant is awarded to films that are unique and make a contribution to society. The grant offers cash as well as discounted production services and goods to help filmmakers get their projects started or completed. Over 200 filmmakers applied for the Roy W. Dean Fall Film Grant. The yearly deadline for submissions was September 30th, 2014. Projects submitted included documentaries, narrative features, and short films.
“Carole Dean and From the Heart Productions have been my fiscal sponsor for my documentary. In that time, Carole has gone above and beyond to guide me through the documentary process and has always been there for advice… and some great “cheerleading.” said winner Stephanie Howard.
Stephanie is a co-producer of the award-winning documentary “Refusenik”. She is a television news producer and writer based in Los Angeles and has worked at local television stations as well as the L.A. bureaus of Fox News Channel, CNN, NBC News and Reuters. Stephanie is winner of a commemorative Los Angeles Area Emmy for her work as associate producer of the news magazine program “L.A. Roundtable”. She has also been nominated for Emmy awards as a segment producer at KTTV News and KNBC-TV.
About the Roy W. Dean Grant
Now in its 23rd year, the Roy W. Dean Grant awards filmmakers with great stories, told with passion, the funding to get their projects started or completed. Films submitted to the grant can be short films, documentaries or features from early stages of pre-production to those needing help in post.
The grant has been integral in making sure that talented artists with great stories get their films produced. Recent past winners of the grant include the award winning “Heist: Who Stole the American Dream”, “The Winding Stream: An Oral History of the Carter and Cash Family” which was featured at film festivals in , and “Mia: A Dancer’s Journey” which just premiered in New York this February.
About From The Heart Productions
From The Heart Productions is a 501(c)3 non-profit dedicated to helping filmmakers get their projects made. Besides providing funding through the grant, they are also a fiscal sponsor which allows donations made to films they sponsor to be tax deductible. From The Heart has raised over $1.6 million for crowdfunding films as a partner with Indiegogo. President Carole Dean is the best-selling author of “The Art of Film Funding” which is now in its second edition.