Making Fair Use as Easy as 1, 2, 3 (Part 2)

by Carole Dean

When can you use Songs, News Clips, and Plays in Films

You know that song you hear that you can’t get out of your head?

What if you can’t get it out of your film?

Then, it becomes a question of fair use and a question for entertainment attorneys Michael Donaldson and Lisa Callif  (who happen to be the leading authorities on fair use).

While they were both guests on my podcast The Art of Film Funding , I asked Lisa an important question I hear often in my Intentional Filmmaking Class.

Is the music in your film incidental or non-incidental?

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?”

Carole Dean is the president and founder of From the Heart Productions and author of The Art of Film Funding, 2nd edition: Alternative Financing Concepts.  Her unique, innovative Intentional Filmmaking Class teaches filmmakers how to get their films funded.  New classes begin in September.  Discount for early enrollment.