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We asked fair use specialist Michael Donaldson for his take on one of the toughest issues in the nonfiction film world …
THR, Esq.: I’m a documentary filmmaker. How much copyrighted content can I use in my film without permission or payment to the owner?
Donaldson: “Everyone wants some firm and fixed amount of material they can use pursuant to fair use. However, if you are making a documentary, the first question is not about the amount of material, but rather, ‘Do you need the film clip or music or photo to tell your story cinematically in order to illustrate the point you are making in the film?.’ If the answer is ‘yes,’ you can use what you need — but not one bit more. You must also be sure to make a clear connection between the point you are making and the material you are using. Fair use is rooted in the filmmaker’s First Amendment right to tell a story; but in the real world of distribution, the key is whether the E&O insurance carrier will offer liability coverage. You’ll need a legal opinion outlining why each piece of copyrighted material has been used. If the carrier agrees with the legal opinion, you are on very solid fair use ground and the film can be distributed.”
Donaldson represents independent filmmakers and recently filed a brief in support of Joe Berlinger in his fight against a subpoena to turn over 600 hours of raw footage from his film “Crude” to Chevron.
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