Report by:

Pat Aufderheide,
Co-Director, Center for Media & Social Impact, School of Communication, American University

Aram Sinnreich,
Assistant professor, School of Communication and Information, Rutgers University

With funding from:

The Wyncote Foundation

Introduction

In the summer of 2014, Center Directer Patricia Aufderheide and Rutgers University’s Aram Sinnreich conducted a national survey of 489 documentary filmmakers. The preliminary results show that a great majority of documentary filmmakers understand fair use, find it valuable in their work, and have had no trouble with acceptance by broadcasters, lawyers or insurers.

In 2005, the situation was opposite. Most filmmakers avoided fair use. If they did use it, insurers routinely excluded claims in errors and omissions insurance. That meant broadcasters wouldn’t take work that included fair use. All that has changed since the 2005 creation of the Documentary Filmmakers’ Statement of Best Practices in Fair Use.

Results

Today, attitudes about fair use are positive, strongly associated with free expression and creative opportunity. 70% of those surveyed said they had at least a “good” understanding of fair use, and 75% felt that fair use is “absolutely necessary” or “very useful” to documentary filmmakers.

Fair use is also becoming more widely accepted within the business. Over half of those surveyed (60%) reported that they had recently employed fair use in a production, and almost all reported having no difficulty with insurance (99%) or broadcasters (95%) accepting fair use, as long as they had a letter from a lawyer attesting that the use was fair.

When filmmakers have changed work because of copyright concerns, it’s often for non-fair use reasons. However, the study also found that the field lacks confidence, possibly because individual makers are unaware of general acceptance. Some filmmakers continue to modify their work, believing the environment to be riskier than it is. This self-censorship could be avoided with more education.

Recommendations

  • Showcase the Documentary Filmmakers’ Statement of Best Practices in Fair Use
  • Share success stories
  • Publicize information on the extremely low risk associated with fair use conducted under the terms of the Statement
  • Teach filmmakers about fair use, particularly on digital platforms
  • Share information with distributors, lawyers, insurers
  • Reward good actors in the documentary ecology
  • Educational programs provided by national organizations to familiarize gatekeepers, including lawyers and distributors, with the Statement, current practice, and the actual risk landscape
  • Understand the benefits and limitations of employing copyright-light licenses such as Creative Commons where appropriate within business practice.