The world of a documentarian can be tough, draining and yes, even unfair. Fair use can be a filmmaker’s best friend.
According to “Clearance and Copyright: Everything You Need to Know for Film and Television” by Michael C. Donaldson—which, if you’re a filmmaker, you should run out and buy immediately, since it’s the bible of fair use, especially for indie filmmakers—, fair use is the “lubricant between copyright law and your First Amendment right to express yourself good or bad for your film, book or anything else.” That being said, you still have rules to follow.
When I started my documentary The Bill Murray Experience, which is about my quest to meet Bill Murray, fair usage was the only way I could assure my investors that we wouldn’t get sued. While maybe it wasn’t as noble a use of fair usage as, say, Blackfish, a doc about taking on SeaWorld’s mistreatment of Orca Whales, or Supersize Me calling out McDonald’s on their contribution to the obesity of Americans, I still had a message (and film) I wanted to make.
Here are the rules I lived by, and you should live by too:
Don’t Be a Douche
It’s about good manners and respect for other people’s work. Fair use isn’t about stealing others’ art to get around creating your own. The first editor used on my documentary was very creative, he also didn’t understand fair use. I knew we were in trouble when he wanted to surprise me on our first editing session with a potential opening montage for my doc; it was 15 minutes long and was a montage of Bill Murray scenes from various films. Of course, it was brilliant! But, we were essentially stealing the best scenes from other films to give us the opening to our film. The idea behind fair use is to tell your story as clearly as possible by showing examples of what you are talking about. Fair use isn’t for you to entertain by pilfering someone else’s hard work.
Make Your Point
Fair use is about using other’s clips, logos, props etc…as a way to show what you are discussing. We were lucky enough to have PJ Soles agree to an interview talking about her working relationship with Bill Murray on Stripes. She also discusses being up for the role of Splash, but how the role went to Darryl Hannah instead. If we started with a clip of Stripes before we cut to PJ to introduce the segment that wouldn’t have been fair use although, it would have been a fun way to introduce the segment. Instead, when PJ talks about the famous spatula scene in Stripes we were able to use the clip from the film where Bill puts her on top of the stove and tries to scoop her up with a spatula. Later, PJ talks about Darryl Hannah and Splash and even that Hannah had “great hair”; this is when we cut to Hannah in Splash. There was some discussion about ending the segment with Hannah’s character in Splash sort of swimming to the next segment but, that wouldn’t have been fair use- we’d be using it to creatively get us to the next point and that is no bueno. Make sense?
Get Out While the Going is Good
Since we’ve already agreed not to be douches, now is the time to prove it: only use the amount of the clip necessary to illustrate what you’re showing to the audience. In Morgan Spurlock’s doc Supersize Me, the entire documentary was about his only eating McDonald’s for thirty days and saying “Yes!” every time they asked to Supersize it. While it was a reason for heartburn, it was also a reason he could use McDonald’s logo and restaurants throughout the entire length of the documentary. We had interviews with Bill Murray fans who were inspired by certain Murray films. The Murray fan would say “I loved Bill Murray in Quick Change so, we’d show a quick clip of Murray in Quick Change. This is where it gets dicey, how much is too much? My editor and I were nervous and didn’t want to go through getting denied by our lawyer and having to re-edit and seek new approval on the clip. We probably, for the sake of entertainment, could have tried to push the envelope on the length of the clips but, honestly it wasn’t necessary to our story so, we got out while the going was good.
Don’t Be Shady
The connection you’re making with the asset you’re using and their use in the film should be obvious and clear to your viewer. If you’re trying to get around the rules, just remember that they aren’t totally set, because, like most creative works it’s about your creativity in using the clips…make the connection obvious and you won’t have to worry about getting a “no.”
Credit Where Credit is Due
Don’t forget to log everything. When you’re turning in your items for fair usage make sure that you’re prepared to give credit to the copyright owner as well as the director and writer. For us this was done at the end credits, you may choose to also show this earlier with some text on the actual clip. The words you can not use are “with thanks to,” “clips obtained from” or even “licensed from”, which would imply you received permission to use the clips. With fair usage you’re not being granted permission from the owner of the copyright you are using fair usage.
You’ve Got an Image Problem
We used animation in our documentary. It looks like Bill…sorta. Bill Murray’s image is copyrighted. Using his likeness in a way that infers he authorized the movie is a no-go. So our animator, Jim Towns gave us a different Bill Murray cartoon image that worked just great. We thought about using it on our cover art but decided against it. This is, of course, strange. Because Bill is actually in our film, we had a right to his image under fair use, but not for the cartoon likeness for advertising.
Those were the things we did right, here’s a few we did wrong.
Show Me the Money
Getting items cleared for fair use is going to cost you. As a first time filmmaker I naively believed that if I was extra careful and followed the rules I could just say I used fair usage and the distribution gods would be like, “Good Job!” and I’d get my gold star. Such a sweet innocent time for me! You must pay a lawyer to clear your fair usage and write a letter to your E&O (Errors and Omission) lawyer laying out that the movie follows the terms of fair usage.
At the final hour we decided to re-edit the beginning of the film. My editor would tell you, it was past the final hour. (Sorry Jim!) We removed a clip and we switched around a few things. After we received the letter from our fair use attorney and were on our way to getting our E&O insurance (which is required by the distributor, btw) we had to update the changes even if it was just a difference of a few seconds to where we placed or had removed the fair use item. Which, meant I had to make yet another call to my E.P. begging for more bucks. This is never a fun call.
More is More
This is crazy for me to say…we could have used more clips. Ultimately, I don’t think our film suffered from being careful, however, had I really understood fair use I might have had a little more fun with it and thought about how it could be of use while filming, making a space in the story to utilize this gift from Congress. Thank the Copyright Act of 1976, where they decided each film would be accorded fair use on a case-by-case basis.
Without Music, Life Would Be a Mistake
Same for your film. You want music. We were good girls and boys and got the rights to all our original music (from talented musician friends over beers—bless their golden voices and hearts!). The one song we expected to come under fair use, the clip was in fact covered, however, the song rights were not. Meaning we were clear to show and use the singing of the song, however, we would have to pay copyright to use the lyrics. The use of the lyrics was going to put us out another $4,000 and my E.P. didn’t care about the caged bird. Wah. We recovered but, I wish I had understood this earlier because I could have budgeted for it.
This is a really simplified approach to fair use. Every fair use journey is like every film; unique to your story. Sharing with other filmmakers what worked and what didn’t is a gift we can give other creatives and will help us better understand the totally fair world of fair usage in the totally unfair world of filmmaking. Good luck! MM
The Bill Murray Experience opens on VOD and is available on all digital platforms December 19, 2017, courtesy of Gravitas Ventures.