Can you help me out? I’m in post-production for my new documentary, but my producer and I are deadlocked in an argument about copyright. The documentary focuses on the treatment of veterans, so I wanted to include a section about the portrayal of soldiers and veterans in media – clips from Born on the Fourth of July, Jarhead, The Hurt Locker, Platoon, etc. My producer says that we can’t fair-use those clips because they are popular fiction films and therefore aren’t educational – but I really believe that this is a vital component to my argument in the film. Can you help me out here?
I’d suggest that you and your producer take a look at the Documentary Filmmakers’ Statement of Best Practices in Fair Use. Once you’ve both read the whole (short!) document, pay attention to Principle Two and the limitations that help you decide what you can use, how much, and for what purpose. The entertainment value of the film clips does not inherently disqualify them from fair use. Are you harnessing the film clips for your own purpose, adding significant new meaning to them rather than simply exploiting the existing entertainment value? It sounds like you are using the clips to make an analytical argument (not just using them as b-roll to avoid the inconvenience of shooting footage of your own, or for their original purpose of entertainment), and those are important elements of a fair use decision. You and your producer can work together to develop the rationale for your fair use decision.