Fair Use: What a Difference a Decade Makes
![handle is hein.journals/jocoso57 and id is 370 raw text is: FAIR USE: WHAT A DIFFERENCE A DECADE MAKES
by MICHAEL C. DONALDSON*
The seminal effect of the Documentary Filmmakers' Statement for
Best Practices in Fair Use' on the documentary film industry is no secret.
Its release in 2005 was followed by a well-supported campaign to all cor-
ners of the country to promote the Statement, which was followed by the
media insurers' embrace of fair use coverage. It has even given rise to a
new practice area for lawyers: clearance work for independent film pro-
ducers. Previously, all the clearance attorneys worked for the gatekeepers:
the insurance companies, studios, and broadcasters.
The drafting of the Statement was a watershed moment for documen-
tary filmmakers in their ability to make fair use of copyrighted materials.
It helped filmmakers and insurers alike realize that the application of the
fair use doctrine in documentary films was not as ominous as it had previ-
ously seemed. With the help of the Statement and the hard work of film-
maker advocates around the country, we were able to convince the
powers-that-be that licensing all copyrighted material was not the only
way to insure a documentary film. But perhaps the biggest effect that the
Statement has had on the documentary film industry is its role in educating
documentary filmmakers about the fair use doctrine - its purpose, its ba-
sic principles, its limits and, perhaps most importantly, its existence as an
effective tool in the filmmaker's arsenal.
The 2005 Sundance Film Festival was held a scant six months before
the Statement was issued. None of the documentaries that we worked on
had exercised their rights under the fair use doctrine. None. Fast forward
five years later: our office cleared six documentaries that screened at Janu-
ary's 2010 Sundance Film Festival. To show you just how much has
changed, here is a chart that demonstrates exactly how the documentary
filmmakers we represent used fair use:
*Michael C. Donaldson is founding partner of Donaldson and Callif, a boutique
firm specializing in independent film and theater. He is author of the award-win-
ning Clearance and Copyright which is used in over fifty film schools across the
country, and lectures regularly on the subject of fair use and clearance issues. He
was also on the Legal Advisory Committee for the Documentary Filmmakers'
Statement.
1 Ass'N OF INDEPENDENT VIDEO AND FILMMAKERS ET AL., DOCUMENTARY
FILMMAKERS' STATEMENT FOR BEST PRACTICES IN FAIR USE (2005) [here-
inafter DOCUMENTARY FILMMAKERS' STATEMENT], available at http://www.
centerforsocialmedia.org/sites/default/files/fair use-final.pdf.
Fair Use
331](ViewImageLocal?handle=hein.journals/jocoso57&div=19&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Fair Use: What a Difference a Decade Makes
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most