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Documenting Fair Use: Has the Statement of Best Practices Loosened the Fair Use Reins for Documentary Filmmakers?

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Abstract

The United States Copyright Act allows for fair use of copyrighted material under certain circumstances, but federal courts have been inconsistent in rulings on copyright infringement cases in which documentary filmmakers claim fair use. This can be problematic for documentarians, who often use copyrighted materials. The 2005 “Documentary Filmmakers’ Statement of Best Practices in Fair Use” addressed this inconsistency by providing guidelines for filmmakers. This article analyzes relevant federal cases before and after the statement in which a documentary filmmaker was sued under the Copyright Act for infringement and in which a court addressed the issue of whether the use was fair. A case analysis shows that federal rulings have become slightly more accommodating toward the use of copyrighted material in documentaries and the use of copyrighted video in general since the statement was introduced. The statement's relevance to fair use case law is also examined.

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... In the last 15 years, scholars have begun to turn their attention to empirical data in copyright. Some of this work features analysis of judicial decision-making, to examine how fair use is interpreted or decided in practice (Abdenour, 2014;Beebe, 2008;Madison, 2004;Samuelson, 2009). This work has found gathering consistency in fair use decision-making since 1990, following the logic of a seminal law review article arguing for the centrality of transformativeness (Leval, 1990). ...
... Finally, some empirical studies have used a combination of longform interviews and surveys of specific creative fields. Some of it has documented the measurable costs of creators' confusion and frustration with copyright law (Aufderheide, & Jaszi, 2004;Aufderheide, Hobbs, & Jaszi, 2007;Abdenour, 2014;Aufderheide, Milosevic, & Bello, 2016). Other work, sometimes following on this original baseline research, has measured the benefits of copyright exceptions and exemptions such as fair use, when correctly legislated, enforced, adopted by institutions, and communicated to maker-communities (Falzone, 2010;Aufderheide & Jaszi, 2018). ...
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... (Aufderheide & Jaszi, 2011) No large copyright holders complained; indeed, attorneys reported taking on large-media clients, including motion picture studios, newly interested in in employing fair use. Academics studied and cited the effectiveness of the best-practices approach to make fair use more accessible to creative communities (Abdenour, 2014;Falzone & Urban, 2010;Falzone, Jennifer, 2010) Despite these measures, the conversation about the use of copyrighted works within the documentary film community, as reflected in festival panels and discussions in the ensuing decade, continued to be dominated by concerns about risk. This concern, unsubstantiated by data, loomed large in a field where most documentarians work on their own in small businesses, and where one bad decision could threaten the business' future. ...
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