Creative Liberty Vs. Copyright - Exploring Fair Use In Documentary Cinema
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Category: Intellectual Property
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CREATIVE LIBERTY VS. COPYRIGHT: EXPLORING FAIR
USE IN DOCUMENTARY CINEMA Keerthana Krishna, Sastra Deemed University, Tirumalaisamudram, Thanjavur - 613401, Tamilnadu, India
ABSTRACT
In documentary films, actual people—also known as social actors—present themselves to us in their own authentic voices, offering a believable interpretation of the lives, circumstances, and events they depict. Rather than being a made-up allegory, the story is shaped by the unique point of view of the director to offer a clear glimpse into the historical reality. Fair use plays a pivotal role in documentary filmmaking, serving as a crucial legal doctrine that balances the protection of copyright holders' rights with the fundamental right to freedom of expression. This research paper explores the nuanced application of fair use within the context of documentary films, where creators often rely on pre-existing materials to construct narratives that critique, inform, and educate.
Through a comprehensive analysis of legal precedents, case studies, and scholarly perspectives, this paper examines how fair use is interpreted and applied in documentary filmmaking. It delves into the factors courts consider, such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the market value of the original work. The paper also addresses the challenges filmmakers face in navigating fair use, including the risk of legal disputes and the ethical considerations involved in repurposing copyrighted material. Ultimately, this research aims to underscore the importance of fair use in fostering creativity and enabling documentary filmmakers to contribute meaningfully to public discourse, while also acknowledging the need to respect the rights of copyright holders.
Keywords: fair use, documentary, cinema, copyright, creative liberty
INTRODUCTION
Through the presentation of factual information about genuine people, places, and events, usually though not always represented through the use of real photographs and artifacts, documentaries immerse viewers in new worlds and experiences. This is where fair use comes into play, as it grants filmmakers the ability to use copyrighted material under certain conditions, helping to expand the creative liberty inherent to documentaries. Factual components by themselves, however, do not characterize documentaries; rather, the filmmaker's use of those facts to weave them into a larger story that aims to be as engaging as it is honest and is frequently better than the sum of its parts does. A fundamental idea in documentary filmmaking is the notion of fair use, which permits filmmakers to utilize copyrighted content without consent in some circumstances.
The goal of fair use is to strike a balance between the public's desire to access and interact with creative works and the rights of copyright holders. This theory is particularly helpful to documentarians because, under certain conditions, it permits the use of copyrighted text, images, music, and clips to produce narrative, critical, or instructional content. The relationship between creative freedom, fair use, and documentary filmmaking is a powerful dynamic that allows creators to probe society's most complex issues while negotiating the boundaries of copyright law. NEXUS BETWEEN CREATIVE LIBERTY AND FAIR USE: Fair use and the idea of creative liberty in documentaries are closely related. In order to demonstrate cultural impact or societal relevance, documentarians must have the freedom to tell stories authentically and vividly, sometimes incorporating copyrighted elements.
To give historical context, for example, a documentary about political propaganda might need to include snippets of government or news broadcast footage. These imaginative choices go beyond simple narrative; by establishing the topic in well-known or reliable sources, they enable viewers to relate to it. Thus, fair use promotes creativity by enabling documentarians to incorporate these cultural allusions without worrying about copyright violations. Additionally, this gives them the ability to analyse and evaluate the media itself, employing well-known images or sounds to make powerful claims that resonate with viewers. TUSSLE BETWEEN THE IDEA OF CREATIVITY IN CINEMATOGRAPH FILMS AND DOCUMENTARIES: The fundamental difference between cinematographic films and documentaries lies in their purpose and approach.
Cinematographic films primarily aim to entertain or evoke emotions, often relying on fictional or dramatized narratives, imaginative storytelling, and artistic visuals to engage audiences. In contrast, documentaries focus on portraying real events, people, or issues with an emphasis on authenticity and factual accuracy. While films are driven by creativity and unrestricted artistic license, documentaries balance creativity with ethical storytelling to educate, inform, or provoke thought, often adhering closely to reality. The differing nature of cinematographic films and documentaries, as well as their perceived bounds, are frequently at the centre of the discussion surrounding creativity in these two storytelling mediums. The primary creative distinction between documentaries and cinematographic films is found in their scope and application.
The limitless creativity of movies allows for the creation of fantasy plots, fictional universes, and inventive images that enthral and amuse viewers. To push the limits of storytelling, directors employ techniques like sophisticated set designs, inventive scripts, and special effects. Documentaries, on the other hand, use creativity within the confines of truth by bringing factual stories to life using techniques like captivating editing, original narrative structures, animation, or visual metaphors. Documentaries must artistically strike a balance between artistic components and authenticity and veracity, whereas films thrive on unbridled artistic expression. RIGHTS IMPACTED BY CREATIVITY DIFFERENCES IN FILMS AND DOCUMENTARIES: a) Personality Rights The way personality rights are handled is greatly impacted by the creative differences between documentaries and cinematographic films.
Unless they are based on actual persons, cinematic films which sometimes use fictional characters, usually steer clear of direct legal issues pertaining to personality rights. In order to prevent accusations of defamation, invasion of privacy, or misappropriation, filmmakers must get authorization or life rights when portraying real people, particularly when the portrayal is fictionalized. Since documentaries are based on truth, they usually feature actual individuals and events, which makes personality rights a major issue. When a person's reputation or privacy may be impacted by how they are portrayed, documentarians must make sure they have their consent. Even while prominent personalities have fewer rights when it comes to issues of public interest, they may still have claims if a documentary portrays them in an inaccurate or disparaging manner.
Therefore, it is more difficult to strike a balance between respect for personality rights and imaginative storytelling in documentaries than in fictional movies. Carole Baskin, a well-known character in the documentary Tiger King (2020),1 said that her representation was deceptive and hurtful to her reputation. The debate brought attention to the moral dilemmas of bias and selective editing in documentaries, even though no legal action was successful. Although filmmakers are free to express their opinions, these depictions run the danger of damaging people' reputations, particularly if consent is not sought or tales are distorted. The 2015 film Making a Murderer2 was criticized and threatened with legal action for its alleged bias and libelous portrayal of law enforcement personnel.
The series raised discussions on storytelling fairness, highlighting the necessity for documentarians to strike a balance between gripping stories and truthful and equitable representation in order to avoid moral and legal dilemmas, even if no major lawsuits surfaced. b) Privacy rights Since fictitious films frequently use made-up characters and plots, privacy concerns are less prevalent in these types of movies. However, when actual people are portrayed without their consent, problems could occur, especially if private information is shown in unapproved dramatizations. However, as documentaries usually feature actual persons and events, privacy rights are a major concern. To prevent legal issues, filmmakers must get permission before showing private people or delicate subjects.
c) Publicity rights There are differences between the two in terms of publicity rights, which safeguard the commercial use of an individual's name, image, or likeness. While documentaries must carefully address publicity rights, particularly when including public personalities or private individuals, fictional films usually only manage these rights when depicting real people. Despite being scrutinized more closely, public persons' likenesses cannot be used for profit without permission. Because they have to uphold these rights while pursuing journalistic or instructional goals, documentarians are faced with a difficult
1 Tiger King Copyright Case Against Netflix; Unravelling The Legal Drama - Naik Naik, Naik
Naik, https://naiknaik.com/2024/04/29/tiger-king-copyright-case-against-netflix-unravelling-the-legaldrama/ (last visited Nov. 22, 2024).
2 Amy Tikkanen, Steven Avery | Biography, Convictions, Appeal, & Facts | Britannica, Encyclopedia
Britannica (Nov. 9, 2016), https://www.britannica.com/biography/Steven-Avery. balancing. COPYRIGHTS ISSUE IN DOCUMENTARY FILMMAKING: When choosing archive footage, filmmakers must make sure they have permission to use it, so it is essential to understand copyright issues. This entails acquiring the required licenses or figuring out whether the video is acceptable for fair use. Ignoring copyright issues can result in legal issues that could stop a documentary from being finished or released. Thom Andersen, a scholar and film critic, finished his three-hour documentary "Los Angeles Plays Itself" in
2003. The film has never been formally released and is only available to see at film festivals,
despite being hailed as an insightful investigation into the relationship between cities, architecture, and cinema. The film's non-release was primarily due to the potentially high cost of copyright royalty payments. The entire movie is made up of video excerpts from various movies that show Los Angeles, complete with the director's voiceover and commentary. He was therefore unable to pay royalties for the use of the clips or secure permission to use all of them. 3 Since documentaries frequently use pre-existing materials like music, images, news footage, artwork, and film clips to convey an engaging tale, copyright concerns are a major concern in the field of documentary filmmaking. Carefully navigating copyright regulations is necessary for documentary filmmakers to stay out of trouble with the law and make sure their work may be widely shared.
The following are some major copyright concerns that come up in documentaries: a) Utilizing Found and Archival Footage: Archival footage or found material, such as old film snippets, government footage, or past news broadcasts, is commonly used by documentarians. However, unless it falls under fair use, this content is usually protected and requires permission or licensing fees to utilize. In contrast, materials in the public domain can be used without restriction. Not all government or historical material is free of copyright, therefore filmmakers should make sure the footage is truly in the public domain before using it. b) Licenses for Music: Since background music, soundtracks, and incidental music frequently need separate 3 NUJS Law Review – The Quarterly Flagship Journal of NUJS, https://nujslawreview. org/wpcontent/uploads/2016/12/08_lawrence. pdf (last visited Nov. 5, 2024).
permits to be used in a documentary, music is one of the most prevalent copyright difficulties in film. This covers both the sound recording rights (owned by the record label or artist) and the musical composition rights (owned by the songwriter). Each song must have a license obtained by documentarians, and the cost might vary greatly based on the clip's duration, the song's popularity, and its function in the movie. c) Photographs and Artwork: Photographs or artwork are frequently used in documentaries to depict historical events or stories. Even photos that are in publicly accessible locations (like websites or museums) are probably protected by copyright, and using them usually calls for consent.
Filmmakers must obtain permission or search for alternatives in the public domain, such as government-owned photographs or licensing through websites that provide royalty-free images, if a work is still protected by copyright. d) Rights to Personality and Defamation: When portraying humans, filmmakers must exercise caution as well. Although this isn't precisely a copyright issue, utilizing film of private people or disparaging prominent personalities may result in litigation for invasion of privacy, defamation, or right of publicity. Freedom of expression gives public figures more flexibility, particularly if the documentary is critical or educational. Filmmakers frequently want permission for private individuals to appear or be interviewed on video. The classic example of Phoolan Devi Case and Shekhar Kapur’s Bandit Queen (1994) can explain better.
Although Bandit Queen is not a documentary, this case sheds light on biographical representation rights, which can apply to documentaries. Real-life documentaries must exercise caution when presenting delicate information or incidents involving living people. It is recommended to get the subject's consent, especially when showing private or possibly offensive material. The case highlights possible legal issues with "personality rights" in India, particularly with regard to biographical documentaries. DOCTRINE OF FAIR USE AS AN EXCEPTION: When unauthorized copying can be allowed without causing the copyright owner serious financial harm and an overly literal enforcement of the owner's rights would work against the public interest in knowledge access and dissemination, the fair use doctrine comes into play.
If the usage is commercial rather than non-profit, it is assumed to be unfair and to have a likely negative impact on the market for the owners' work; the organizers have the burden of proving otherwise. Fair use doctrine is a mixed subject of law and facts. The following four elements determine whether the deal is fair:4 a) The intent and nature of the use b) The type of work protected by copyright c) how much of the work was used (how significant the portion was in comparison to the entire copyrighted work), and d) how using the work affected the original As courts attempted to reconcile the public's desire to allow copying under some conditions with the rights of copyright holders, the "Doctrine of fair use" was born. No particular set of definitions may adequately describe fair usage. Rather, fair use is a more individualized term that can change depending on the circumstances.
This concept's fundamental motivation is that not all copying should be illegal, particularly when it has a socially relevant function or is put to "transformative use"—for example, in the pursuit of criticism, news reporting, education, research, or satire. 5 When content is used in a critical or transformative way, fair use aims to provide a place for unlicensed appropriation. Original ideas and significant critical arguments are present in a fair use. Therefore, regulating the fair use of unlicensed content implies a level of restriction that is unconstitutional. 6 In essence, "fair use" aims to provide an area where writers can build upon and cite each other's work without fear of legal repercussions under the restrictions of copyright law.
According to the requirements of the Section 52 of Copyright Act of 1957, which governs Indian law, fair dealing with a work of literature, theatre, music, or art that is not a computer program does not constitute a copyright infringement. "Fair dealing" refers to anything, with the exception of computer programs utilized for: 4 Fair Use Law in India under Copyright Act - iPleaders, iPleaders, https://blog. ipleaders. in/fair-use-law-indiacopyright-act/ (last visited Oct. 30, 2024).
5 What Is Fair Use Of Copyright Doctrine?, Welcome to
Mondaq, https://www.mondaq.com/india/copyright/1348352/what-is-fair-use-of-copyright-doctrine (last visited Nov. 1, 2024).
6 Fair Use in Independent Documentary Filmmaking - CORE Reader, CORE – Aggregating the world’s open
access research papers, https://core.ac.uk/reader/76393770 (last visited Nov. 1, 2024).
(i) private or personal use, which encompasses studies; (ii) evaluation or critique of it or any other work; (iii) covering current affairs and events, including covering a public lecture. Documentary filmmakers are greatly influenced by the idea of fair use, which permits them to use copyrighted content—like news footage, music, film clips, or photographs—without getting permission as long as they adhere to certain legal requirements. Since documentaries frequently use pre-existing media as support or examples, fair use is essential for allowing them to critically examine, comment on, or contextualize cultural, political, and social issues. Fair use promotes freedom of expression and the investigation of delicate subjects that might otherwise be prohibited by permitting the selective and transformative use of copyrighted content.
In documentaries, the impact of fair use is particularly noticeable in its ability to facilitate criticism and commentary. Fair use, for instance, enables filmmakers to analyze the cultural impact of brief snippets of news reports, speeches, or popular media, frequently adding a level of complexity that would be challenging to accomplish with narration alone. As filmmakers can juxtapose or remix preexisting footage to produce fresh perspectives or challenge media narratives, it also encourages creativity. Furthermore, fair use can lower production costs because, particularly for independent filmmakers or smaller production companies, obtaining licenses for even short excerpts of well-known songs or movies can be prohibitively expensive. Nevertheless, even with its advantages, applying fair use can occasionally be unclear; follow cautious procedures to prevent possible copyright issues.
The industry has long struggled to strike a balance between creative freedom and legal safety, despite fair use's support for transformative and educational work in documentaries. USAGE OF DOCTRINE OF FAIR USE IN DOCUMENTARIES: It is crucial to understand that when using copyrighted content for their projects, documentary filmmakers must decide whether or not to rely on fair use. It is structured around four categories of scenarios that they frequently face in their work. These four classes represent the most prevalent types of situations that documentarians have identified thus far; they do not cover all the possible scenarios in which fair use might be applicable. A broad rule regarding the applicability of fair use is stated in each instance, followed by exclusions that might have an impact on particular situations. 7
1. Using content protected by copyright as a subject of cultural, social, or political
criticism These kinds of uses are typically acceptable as a way for documentarians to exercise their fair use rights. This is comparable to how a newspaper might, for instance, review a new book and use an example quote from it. In fact, the fair use doctrine, which protects freedom of expression, is based on this activity. The aforementioned principle has one general qualification. The use shouldn't be so widespread or extensive that it loses its ability to critique and instead serves as a means of appeasing the audience's preference for the item (or type of item) being criticized. To put it another way, the work (or similar works) shouldn't be replaced by the critical use in the market.
2. Using popular culture quotes that are protected by copyright to support a claim
or argument Documentarians should ensure fair use claims in documentary filmmaking by ensuring content is appropriately credited, quotes are taken from various sources, each quotation is no longer than necessary for the desired effect, and the content used is not solely for cost or time savings. This approach ensures that the documentary's artistic or intellectual goal is subordinated to its overall goal. This approach helps documentarians create a more comprehensive and accurate representation of their work.
3. Recording copyrighted media while recording something else
Documentary filmmakers should be shielded from being compelled to fabricate facts by fair use. It should be acceptable to use, to a reasonable degree, a sound or image that was incidentally and unplannedly recorded as part of an unstaged scene in the finished film. The values of the disciplines (such as journalism, historical analysis, and criticism) that inform reality-based filmmaking, as well as the documentary practice itself, would be at odds with any other regulation. Documentarians should ensure that incidentally captured media content in a scene is not requested or directed, is integral to the scene, is properly attributed, and does not primarily exploit the scene's content. The captured content should not be the scene's
7 Documentary Filmmakers' Statement of Best Practices in Fair Use - Center for Media and Social
Impact, Center for Media and Social Impact, https://cmsimpact.org/code/documentary-filmmakers-statement-ofbest-practices-in-fair-use/ (last visited Nov. 3, 2024). primary focus of interest and should not function as a substitute for a synch track. This is to ensure that the incidentally captured content is not used as a substitute for a synch track, such as if the sequence containing the captured music is cut on its beat or used after the filmmaker has cut away to another sequence.
4. Employing copyrighted content in a historical sequence
In some cases of this type, fair use should be applicable due to the documentary medium's social and educational significance. To draw a different conclusion would be to ignore the possibility that film can serve as a medium for presenting history to future generations of citizens. This type of fair use, when properly conditioned, is essential to achieving copyright's goals. However, if left unchecked, the principle may also undermine the rightful interests of copyright holders, including documentary filmmakers.
To prove fair use of a material in a film project, the documentarian must demonstrate that the project was not specifically designed for the material, it serves a critical illustrative function, no suitable substitute exists, the material cannot be licensed excessively, the use is minimal, the film project does not rely heavily on any single source for illustrative clips, and the copyright owner of the material used is properly identified. JUDICIAL APPROACH: The United States has a strong and well-established fair use doctrine under Section 107 of the U. S. Copyright Act, which gives its judges a more defined approach to fair use in documentary filmmaking than many other nations. The use of copyrighted material is evaluated by U. S.
courts using a four-factor test, with a particular emphasis on whether the use is transformative, serves the public interest, and does not unduly affect the market for the original work. Whether a use is "transformative", that is, whether it adds new expression, meaning, or message to the original material rather than merely copying it is given priority by U. S. courts. This means that using copyrighted material for documentaries in ways that clearly serve a purpose like reporting, commentary, or criticism is more likely to be regarded as fair use. In Campbell v. Acuff-Rose Music, Inc. (1994),8 the U. S. Supreme Court highlighted in this historic case that a transformative use, even if it is for commercial purposes, may be considered
8 510 U.S. 569 (1994).
fair use. Courts frequently apply this principle in documentary cases, and even though this case involved a parody, it laid the groundwork for allowing documentaries to use copyrighted works if they offer fresh perspectives, analysis, or criticism. In Lennon vs. Premise Corp. , L. P. ,9 the use of John Lennon’s song Imagine in the documentary Expelled: No Intelligence Allowed, which examined debates around creationism and evolution. A brief portion of the song was used to criticize its message in the context of the documentary's theme. The court found this to be fair use, noting that the song was used for critical commentary and that only a small portion of the original work was included. This ruling supported the notion that documentaries can use copyrighted material to critique or comment, as long as it is in line with fair use.
In India, the judicial approach to fair use (also known as "fair dealing" under Indian copyright law) in documentaries is based on a set of guidelines that seek to strike a balance between the rights of the copyright holder, the public interest, and creative freedom. Even though there aren't many direct precedents pertaining to documentaries, Indian courts have given fair dealing a broad interpretation when it comes to public interest, criticism, education, and commentary— all of which are frequently at the heart of documentary filmmaking. In R. G. Anand v. M/S. Deluxe Films & Ors. ,10 the Supreme Court addressed copyright violations pertaining to a play that purportedly served as the basis for a movie. Despite having a similar theme, the Court decided that there was no copyright infringement because the film was treated differently.
The significance of "substantial similarity" and originality in fair use analysis was established by this case. This suggests that if the copyrighted content is altered or used in a different way than in the original work, fair use may be contested for documentaries. The case of Super Cassettes Industries Ltd. v. Hamar Television Network Pvt. Ltd. ,11 concerned a television network's unlawful use of music videos and songs protected by copyright. The Delhi High Court decided against the network, emphasizing that uses that were solely for entertainment without any commentary or transformative intent were not covered by fair dealing. This case serves as further evidence that merely using copyrighted material for documentaries without providing commentary, criticism, or educational value does not constitute fair use.
9 556 F. Supp. 2d 310 (S.D.N.Y. 2008).
10 AIR 1978 SC 1613
11 2012 (50) PTC 153 (Del)
CONCLUSION
Creative liberty, supported by fair use, is essential to the vitality and purpose of documentary filmmaking. By allowing the use of copyrighted material within reasonable limits, fair use opens avenues for filmmakers to create work that is not only visually compelling but also intellectually and culturally relevant. This legal framework grants documentarians the ability to build narratives that include real-world media, historic events, and popular culture, lending authenticity and depth to their storytelling. With this liberty, documentaries become more than mere recordings of reality; they emerge as critical analyses and transformative interpretations that invite viewers to reflect on society and question established narratives. Fair use also plays a significant role in democratizing the documentary field.
By reducing the economic barriers associated with licensing fees, it enables independent filmmakers and smaller production companies to participate fully in this genre, contributing diverse voices and perspectives to the global conversation. This accessibility fosters a rich documentary landscape where filmmakers can explore sensitive or complex subjects without fear of prohibitive costs, ensuring that stories from all segments of society can be told. Yet, the relationship between fair use and creative freedom is nuanced. Legal ambiguity around fair use can sometimes restrict filmmakers’ choices, leading them to err on the side of caution to avoid potential copyright disputes. This balance requires careful navigation but remains crucial to sustaining the documentary field as a space for free expression, critique, and education.
Ultimately, the convergence of fair use and creative liberty allows documentaries to fulfil their highest purpose: to challenge, inform, and inspire audiences by connecting them to real stories and lived experiences. In this way, fair use serves not only as a legal tool but also as a cornerstone of creative integrity and public awareness in documentary filmmaking.