Copyrights
Hello everyone! These past couple months we have been dissecting the different legal aspects of documentaries and docudramas in an effort to better understand how they are made and how our laws affect them. Along the way we were able to talk to two writers and producers, law students from the Yale DocProject, and a lawyer from Netflix. We analyzed legal aspects of documentaries, from copyright law to contracts to intellectual property. We also heard some fun and interesting stories from everyone we talked to about the filming of documentaries, interesting things that have happened while filming, and what it takes to be a documentarian. I specifically focused on copyright law and its role in documentary making. Below are some key aspects of copyright law as well as some fun stories and examples from our interviewees. Enjoy!
Disclaimer: The information provided by Adam Wactlar, the Yale DocProject, Nigel Bellis, and Simon Tor Dekker was provided to us for informational purposes only, and should not be construed as legal advice on any subject matter. The views and opinions expressed are those of the speakers and do not reflect the views of any entities they represent.
Image from video courtesy of Nigel Bellis
Copyright law encompasses the laws that protect artistic works that are made by people. These include literary works, musical and dramatic works, sound recordings, motion pictures, architectural works, choreography/pantomime, pictures, graphics, sculptures, etc. Copyright law also protects derivatives of the works that are copyrighted. Copyrights allow the holder to reproduce, distribute, prepare their own derivative works, publicly perform, and publicly display their works, for profit or other motives. Copyrights do not protect facts. Copyrights last for the life of the author/creator plus 70 years, or it lasts for 95 or 120 years if the work/s were made for hire. After these time periods end the work is in the public domain and can be freely used by everyone.
To be copyrightable, a work must meet three requirements. The first is whether the work is a copyrightable subject matter - i.e., does it fit the definition of a work that was described above. The second requirement is whether the work is Original - i.e., did this person create the work or was it copied. It is the case that if someone can prove that they came up with a work completely on their own they can get a copyright for it even if somebody else holds a copyright for the exact same thing or something similar. The objective of this test is to make sure it is Original and not copied from somewhere else or someone else. The third requirement is whether the work has been fixed in a tangible medium. A person cannot copyright a song that they have in their head, it must be written down or be recorded by them in some kind of medium in order to be copyrightable. These tests are weighed equally to figure out if the work is copyrightable.
With the stage now set, let's dive into copyrights in documentaries. Simon Tor Dekker explains how he works with his staff to fact check and make sure what they are filming is as factual as possible.
Something that Simon talks about is the accuracy of what is being portrayed. This gets into a big piece of copyright law called the Fair Use Doctrine (Office U.S. Copyright). This doctrine helps to evaluate new works that might be considered a derivative as well as a protection for people who want to use facts in what they are producing. The new work is weighted against 4 factors to help identify if it is infringing on a copyright or if it can stand reasonably by itself without infringing on a previously copyrighted work. These factors are: 1. The purpose and use of the work is transformative in nature, is of commercial use or for nonprofit educational purposes. 2. The nature of the copyrighted work is taken into consideration. Meaning, is the work factual or creative? A factual work will be more likely to pass the Fair Use test. 3. How much of the copyrighted work is used. The more the work is used in the situation the less likely it is that the Fair Use Doctrine can protect someone. 4. The effect of the use of the copyrighted work on the potential market or the copyright’s value (Vondran, 2019). If the use of the material is hurting the market for that copyright or hurting the value of the copyright, that weighs against that being Fair Use.
The students in the Yale DocProject explained the things they look for regarding Fair Use and 1st amendment rights when reviewing films, including review of previews and trailers that incentivize people to see or buy the documentary.
Another important topic that the DocProject was able to walk us through is The Right of Publicity. We as individuals have the legal right to limit and control how our name and likeness and image are used commercially. This stops businesses from simply using images of you, or using people who sound like you, for commercial gain without asking you first. This could potentially lead to the business compensating you for their use of what makes you, you. The point of this law is to prevent our likeness from being used in ways that we do not agree with. We wouldn’t want to be part of a drinking commercial, for example, if we believe that drinking is wrong. This law helps the individual protect their image from misuse (Quinn 2021).
As we were going through these important topics we asked if the law ever got in the way of making the documentary the way a producer or writer wanted to. Nigel gave us his perspective.
Obtaining police body cam footage can be helpful for true crime documentaries. How can filmmakers obtain that footage and be permitted to use it? While Nigel said he was not an expert on the subject, he shared his insight.
Adam Wactlar, a lawyer at Netflix, shared with us some pitfalls to avoid when making documentaries.
Make sure you have permission to use copyrighted material or that you have a strong Fair Use case in order to use the said material without permission.
Make sure the statements you make in the documentary are factual. You do not want to have to worry about losing a defamation lawsuit. Those can get very expensive, especially when documenting high profile individuals.
Make sure to understand the Right of Publicity laws and the Right to Privacy laws where you are filming. There are limits to both depending on the state that you are in and that can work for you or against you.
Make sure to work with legal counsel consistently so you stay compliant with the laws that are applicable to you and your production.
A good amount of what Adam discussed with us was also brought up when we interviewed Nigel. We asked him what some of the most common problems documentaries and shows run into when filming true crime stories, and he had a great list for us: 1. Some of the families may be hard to get interviews from because this could be their 3rd or 4th time being shown in a documentary. 2. Some of the reference material might be a bit too graphic, although Nigel indicated that this is often not a concern - viewers are wiiling to see some of the more gruesome things that happen. 3. Legal issues resulting from defamation lawsuits because individuals do not like how they were portrayed. 4. Being able to ensure the factual accuracy of statements made while still making compelling TV. This final point relates more to docudramas, but it is still very applicable to documentaries as well (Kanann 2023).
References
Kanaan, Gregory R. 2023. “Cinema Law: What Are Your Rights When Filming a Criminal? - MovieMaker Magazine.” MovieMaker, January 31, 2023. https://www.moviemaker.com/what-are-your-rights-filming-criminal/.
“Legal, Consent & Copyright Issues for Documentary Filmmaking.” n.d. Desktop-Documentaries.Com. https://www.desktop-documentaries.com/copyright-issues.html.
Office, U.S. Copyright. n.d. “Fair Use (FAQ) | U.S. Copyright Office.” https://www.copyright.gov/help/faq/faq-fairuse.html.
Quinn, Patrick. 2021. “Right of Publicity and the Rise of True Crime.” Davis+Gilbert LLP. October 12, 2021. https://www.dglaw.com/right-of-publicity-and-the-rise-of-true-crime/.
Vondran, Steve. 2019. “FAIR USE GUIDELINES FOR DOCUMENTARY FILMMAKERS.” https://Www.Vondranlegal.Com. January 29, 2019. Accessed May 21, 2024. https://www.vondranlegal.com/fair-use-guidelines-for-documentary-filmmakers.