Although films obviously create their own creative content, protectable by copyright, often these works incorporate existing content.\u00a0 Depending on the particular use, a filmmaker or production studio may choose to license a particular copyrighted work, but in other instances the film creator has relied on fair use.\u00a0 Here are some examples where fair use and films have gone hand-in-hand\u2014both in the documentary film context as well as feature films and shows.<\/p>\n
In another instance of documentary filmmaking, artist Bouchat sued over the use of the Baltimore Ravens\u2019 logo in several videos.\u00a0 While a prior case held that the Baltimore Ravens had infringed the logo design by Bouchat for several years, the use in the films (and historical exhibits) was considered fair.\u00a0\u00a0 The Fourth Circuit held in Bouchat v. Baltimore Ravens<\/em> that the videos at issue used the copyrighted material in a transformative way, telling the history of the Baltimore Ravens and the logos were \u201cfleeting\u201d in nature.<\/p>\n And in yet another litigated case over a documentary film, National Center for Jewish Film v. Riverside Films<\/em>, a district court noted that the use of film clips in Sholem Aleichem: Laughing in Darkness<\/em> (about the life of a 19th<\/sup> century Yiddish author) was transformative because it incorporated various clips with scholarly commentary (NB: whether the films had entered the public domain was also questioned, a factor that the court weighed in favor of fair use).\u00a0 Again, because these clips were used in a transformative way that did not supplant the market for the original film, the court held the use to be fair.<\/p>\n Not every fair use ends up being litigated, though.\u00a0 Indeed, most documentary movies probably don\u2019t involve rightsholders claiming copyright infringement in part, thanks to the Documentary Filmmakers\u2019 Statement of Best Practices in Fair Use<\/a>.\u00a0 That Code of Best Practices, like other Codes (see: Code of Best Practices in Fair Use for Academic and Research Libraries<\/a> or the Code of Best Practices in Fair Use for Software Preservation<\/a>\u2014two best practice statements released by ARL), relies on the consensus view of fair use best practices in the community for which it was written. The 2005 Code for Documentary Filmmakers has had a tremendous impact on the community, making it easier for filmmakers to get insurance, avoiding unnecessary licensing costs and leading to the release of films that may never have been finished otherwise.\u00a0 One of the successes<\/a> is This Film Is Not Yet Rated<\/em> about the MPAA\u2019s rating system.\u00a0 While the director had initially planned to license the clips used, those licenses would have prevented him from using the material in a way that criticized the entertainment industry.<\/p>\n While the documentary filmmaker community relies heavily on fair use there are a number of examples where fair use was invoked in feature films, as well.\u00a0 For example, the Oscar-winning movie Midnight in Paris<\/em>, about a screenwriter, played by Owen Wilson, who travels back in time to the 1920s and hangs out with luminaries like Scott Fitzgerald, Ernest Hemingway, Gertrude Stein, Cole Porter, Salvador Dali and others was the subject of a lawsuit.<\/p>\n![\"\"](\"http:\/\/blogs.harvard.edu\/copyrightosc\/files\/2019\/02\/The_Rumble_in_the_Jungle_poster.jpg\")
Documentary filmmakers have relied heavily on the doctrine of fair use, which makes a lot of sense. If documentary filmmakers constantly had to rely on permission and licenses\u2014which would also mean that a rightholder could refuse to grant permission\u2014the result could be that these documentaries lacked proper historical references and context.\u00a0 In a 1996 case, the Southern District of New York refused to grant Turner Broadcasting\u2019s motion for injunctive relief, finding that the clips of a boxing match film involving Muhammad Ali and George Foreman in a documentary about Muhammad Ali was likely a fair use.\u00a0 In Monster Communications, Inc. v. Turner Broadcasting Systems<\/em>, the court noted that only a small portion of the total film\u2014just 41 seconds\u2014was taken and that the documentary used it for informational purposes.<\/p>\n![\"\"](\"http:\/\/blogs.harvard.edu\/copyrightosc\/files\/2019\/02\/15392207390_c64c47b11c_z.jpg\")
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