Fair Use Question of the Month: Capturing Copyrighted Material in the Background

by Anuj Gupta

Image by LizMarie_AK/Flickr

Dear CMSI,

I work as a documentary filmmaker and for my next shoot, we are filming a lot of scenes in a mall and inside a school. I am worried about all the copyrighted content that might be incidentally shown in the background.

I could theoretically film in an area that does not have copyrighted posters and other images on the walls, or try to get people to remove them, but it will take away from the “reality” I am trying to capture. Will I have to get permission for every incidental copyrighted material that shows up in the background of my documentary?



Dear Brittany,

Thank you for your question. As a documentarian, you want to capture reality and it would be unfair to be forced to “falsify” that reality.

Fortunately, The Documentary Filmmakers’ Statement of Best Practices in Fair Use clearly articulates in Principle Three that “Where a sound or image has been captured incidentally and without prevision, as part of an unstaged scene, it should be permissible to use it, to a reasonable extent, as part of the final version of the film.”

However, you should also be aware of some limitations to this principle. This principle would not apply if you specifically asked someone to put up a poster, play some music in the background, or put the television on a particular channel. You wouldn’t want material that you claim fair use for as incidental to become the primary focus of the scene. For music, the copyrighted music does not substitute for a sync track. (Since the Statement was written, increasingly it has become normal to extend incidental music–say, in a wedding scene–very minorly to provide a graceful exit from the scene.)

Once you have identified the goals of a particular scene and identified the copyrighted material, you can be sure it fits squarely into Principle Three and that it conforms with the limitations set forth. After, you will have made your fair use call in conformity with your profession.




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