Filmmakers: Don't Be Fooled by Fair Use Checklists

The fair use factors, codified in U.S. copyright law and recounted in countless blogs and articles, are easy to recite, but not so easy to apply. This is quite understandable given that the test used to decide whether or not something is a fair use is a highly subjective sliding scale.

Simply put, there are no bright line rules when it comes to fair use. There is no failsafe checklist that will guarantee that the use of another's creative work in your film, whether it be a work of visual art, a song, or a film clip, is for sure fair use.

So what is the filmmaker to do? As great as the D.I.Y. work ethic can be in certain situations, film clearances must be done by an attorney well-versed in the areas of law where filmmakers are most susceptible to liability: copyright, trademark, freedom of expression, privacy, and defamation. In fact, a film will not be able to get meaningful distribution without such a clearance opinion, as it is a prerequisite for obtaining E&O insurance on a film.

Fair use satire? Annie Leibovitz didn't think so.

Fair use satire? Annie Leibovitz didn't think so.

How do attorneys construct these clearance opinions? Very thoughtfully, and the vast majority of fair use issues are very close calls. For Naked Gun 33 1/3, you can bet that Paramount Pictures ran the above promo poster through its legal department or outside attorney. You can further bet that after much research and analysis, the attorney felt comfortable enough to make the recommendation that, although the movie poster copied the famous Anne Leibovitz photo almost in its entirety, the juxtaposition of Leslie Nielsen's face on the very-obviously-not Leslie Nielsen's body would count as a fair use parody under copyright law.

Annie Leibovitz, the photographer who took the original image, strenuously disagreed. She sued Paramount, arguing that the film did not have permission to use her famous photo in its marketing, or that at the very least she was entitled to a licensing fee for the usage. While there was some sympathy expressed for the (mis)appropriation, both the trial court and the appellate court ultimately ruled in Paramount's favor. I like using this case as an illustration, because I think it's one where you can really understand both sides' point of view and see how close these fair use cases can be. I also think it is an example where the courts got it right, even though it was a tough decision.

Fair use was purposefully written into copyright law to provide authors and artists the ability, under certain circumstances, to build upon already-existing copyright-protected works. Filmmakers and production companies should not be prohibited from exercising this option out of fear of being sued. However, the law here is subjective and complicated. When it comes to your film, an online fair use check list just will not do. Advice and a carefully drafted legal clearance opinion from an attorney with experience in fair use issues and who is respected in the industry are your best bets to make sure your film does not get stuck in development hell or post-production red tape.