Fair Use and Drag Documentaries
What I Wish I Knew Before Shooting
The number one thing I wish I knew more about before filming is what Fair Use meant to my documentary. Fair Use gives us a necessary tool to educate and inform without unnecessarily avoiding logos and copyrighted material. It’s a powerful concept that many filmmakers aren’t aware of.
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I need to preface this article with I’m not a lawyer. During your production, you’re going to have to get legal advice. You’ll absolutely need a lawyer to get picked up for distribution. A lawyer will have to sign off on your film so you can get Errors and Omissions insurance, which most distributors require.
So, it’s better to talk to a lawyer early. Also, make sure you talk to a lawyer that is familiar with Fair Use and understands how important it is to documentary filmmaking. You also might even be able to get a lawyer pro-bono. If you have a fiscal sponsor 501(c)3 attached, try and find a lawyer that cares about the subject of your doc and don’t be afraid to ask.
What is Fair Use?
Fair Use is a legal argument that basically says you can use copyrighted materials without permission in certain situations. Some of these materials may be music that is playing in the background of a scene, art on the wall, a logo on a t-shirt, a news clip played for context or scenes from another movie that you’re critiquing. As long as your lawyer ok’s it, you can use those clips in the proper context without having to pay for them. There’s a checklist of factors you should follow. For a deep dive, you should check out the Documentary Filmmakers’ Statement of Best Practices in Fair Use, but here are the four legal checkboxes, the four factors of fair use (This is copied and pasted from the US Copyright Office):
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair. This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below. Additionally, “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Nature of the copyrighted work: This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.
So how do we apply these four factors to documentary filmmaking?
Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes: Documentary filmmaking and journalism falls into this category, scripted and reality does not. If music is occurring naturally in our filming, would it drastically change the information we’re trying to provide by removing it? Looks at how we are using the footage or music. Is it transformative? for instance using a news clip to show historical context or using movie clips to create a video essay.
Nature of the copyrighted work:
This doesn’t apply as much to the work we are doing but it’s still important.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole:
This is an interesting one because there are a lot of rumors about this. There is no magic time limit. It’s not 30 seconds, it’s not 15 seconds, it’s not 5 seconds. It’s how much do you need to get your point across. It’s incredibly subjective. Could you use less? Are you using the whole song just to use the whole song? You can use the whole song if you need the whole song, but do you really need all of it?
Effect of the use upon the potential market for or value of the copyrighted work:
This is an important one. Is someone going to buy your documentary instead of buying the song that is playing over the loudspeaker in one of your scenes? Is someone going to buy your documentary instead of buying a print of the artwork that’s hanging on the wall in the background? Probably not, so it wouldn’t impact the original piece economically.
Fair Use and Drag Queens
When I started filming Queen of the Capital I thought I had a huge problem. Drag queens lip-sync all of their performances. I didn’t know how I would tell their story on a very small budget if I had to license all of the music. I decided to focus more on the people than the performances, which in the end pushed me to make a better documentary. I still filmed the performances, hoping to figure out some way to use them.
When I put a rough cut together, I replaced the tracks with sync and cut it like a montage. The feedback I got from that rough cut is they wanted to hear more of the performances. They didn’t understand why they couldn’t and it looked awkward. One of my mentors mentioned fair use at a screening and around the same time, I connected with my lawyer.
He told me I could use the naturally occurring music as long as I only used what I needed and I didn’t edit or cut to it the beats. It can’t become a sync track. I was able to mix montage and performances in a way that I was really happy with.
My only regret is that I didn’t talk to a lawyer earlier. I shot to edit, instead of shooting it like a concert or performance. Both of my cameras moved around a lot, making sure we got good shots, but sometimes they were both moving at the same time. If I had known, I probably would have kept one camera more locked down and made sure we communicated when we adjusted the shot.
Talking to my lawyer was an interesting process. He was amazing and I learned a lot. He did searches to make sure certain artists weren’t litigious and walked me through the process. So if I can impart anything on you, it’s don’t be afraid to approach a lawyer and think through Fair Use before you start production.
Here are some examples of documentaries that really put Fair Use to the test:
Here’s What I’m Watching:
City So Real is a look at life and politics in Chicago by filmmaker Steven James. I saw the first two episodes at Sundance and I was hooked right away. Steven James, who directed Hoop Dreams and Abacus: Too Small to Jail.