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.

Making Fair Use as Easy as 1-2-3

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.

Entertainment Attorney Michael Donaldson has been called the

“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:

  1. Are you using somebody else’s material to illustrate a point you are already making in your documentary, pretty simple- yes or no.
  2. Did you only use what’s reasonably appropriate? That’s got a lot of elasticity in it and that’s good.
  3. 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.

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.