To License, or Not to License: Some Guidance to Documentary Filmmakers

By: Brandon Shelton

If you remember the early aughts and the Napster era of file sharing, then you are well aware of the widespread legal battles filmmakers and music producers have waged to protect their rights to profit off of their works. However, if you’re a filmmaker just starting out in the field of the documentary genre, it might occur to you to use footage, sound, or music produced by someone else. In such a case, you could be staring down a long list of needed licenses to copy and use such footage. By now you are probably wondering: “What about my First Amendment!?” To a degree, you’d be right—the First Amendment is the basis behind allowing some copying for critical works, a category to which documentary films clearly apply. However, the macro approach of assuming that the work overall absolves you of any licensing requirements is to a degree misguided.

The U.S. Copyright Act explicitly provides a “fair use” exception, which allows you to use prior works for the purpose of “criticism, comment, news reporting, teaching…, scholarship, or research.” 17 U.S.C. § 107. This exception is what allows you to do some license-free copying necessary to produce a documentary. However, not every aspect of your documentary will necessarily fit within this exception. Compare, for example, footage of Elvis Presley dancing while singing his music with added commentary explaining how his dance moves created controversy, versus a scene showing B-roll in a jailhouse during a documentary about Al Capone’s stay in Alcatraz while playing Jailhouse Rock in the background. In the first example, you are providing some instruction or critique of the music and the video, however in the second, the relationship between your informative position and the work itself becomes much more tenuous. One clearly has a better fair use argument than the other. That being said, the line isn’t always clear, and the fair use protection provided by courts can differ from state to state.

As you create any film, you should always be aware of the works you are using, and the licensing requirements that come along with them. In fact, if you ever plan to show a film anywhere, you will likely need Errors and Omissions (E&O) insurance, and the E&O providers are going to require either proof of a license, or a solid fair use analysis. In other words, the need for licensing and fair use analyses is a bridge you will have to cross to show your filmmaking genius to the world. That being said, don’t be afraid to try to seek out a license. If you believe in your work, stand by it, push through, and eventually, you will have created something to be proud of.

Disclaimer: This article discusses general legal issues and developments. Such materials are for informational purposes only and may not reflect the most current law in your jurisdiction. These informational materials are not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction.  Bend Law Group, PC expressly disclaims all liability in respect of any actions taken or not taken based on any contents of this article.