Fair use and licensing

Copyright is not absolute. The law recognizes that some uses of a work without permission serve important public purposes, such as criticism, news, education, parody and research, and that requiring permission for every quotation or clip would choke expression. Each country builds these limits differently. Image makers rely on them every day, for example when a documentary shows a clip to discuss it, or a review reproduces a frame. But exceptions are narrower and less predictable than many people assume, and relying on them requires judgment and documentation.

This lesson covers the American fair use doctrine and other exceptions, the limited moral rights in American law, and the practical side of licensing when no exception applies, which is most of the time.

Why exceptions exist

Exceptions balance the rights of creators against the interests of users and the public. Courts in both countries describe exceptions as an integral part of copyright law rather than loopholes. That does not make them easy to apply. Most exceptions turn on factors such as the purpose of the use, how much was taken and whether the use harms the market for the original, and reasonable people can disagree about how those factors apply to a given clip.

For a producer, an exception is a legal argument that the use is permitted. Insurers, broadcasters and distributors will want to know that the argument is a good one, usually through an opinion letter from a lawyer who has reviewed the use in context. A use that clearly falls within an exception can save money and make some films possible at all, especially documentaries about media, history and public figures.

How the test works

American fair use is a flexible doctrine codified in section 107 of the Copyright Act. It lists illustrative purposes, such as criticism, comment, news reporting, teaching, scholarship and research, but any purpose can qualify. Courts weigh four factors: the purpose and character of the use, including whether it is commercial and whether it is transformative; the nature of the copyrighted work; the amount and substantiality of the portion used; and the effect of the use on the potential market for or value of the work.

In Campbell v Acuff-Rose Music (1994), the Supreme Court held that a commercial parody of a song could be fair use because it was transformative, adding new expression, meaning or message. In Andy Warhol Foundation v Goldsmith (2023), the Court narrowed that idea: when a use shares substantially the same purpose as the original, such as licensing an image to illustrate a magazine story about its subject, a new meaning or aesthetic alone may not make it transformative enough to favor fair use.

Applying the test to film and photography

Documentaries often rely on commentary and criticism. A film that shows a short clip of a television advertisement in order to analyze its messaging has a strong first factor, especially if the clip is used for a different purpose than the original and no more is used than necessary. A film that uses the same advertisement as background mood, without commenting on it, is much weaker.

Since Warhol, courts look closely at the specific use. Using a photograph of a celebrity on a magazine cover about that celebrity, when the photographer licenses images for that purpose, is unlikely to be fair use even if the image is altered. Using the same photograph in a documentary about the controversy over the photograph itself is a different purpose and may well be fair.

Many documentary filmmakers follow the Documentary Filmmakers' Statement of Best Practices in Fair Use, developed with legal scholars, which describes common situations where fair use is likely, such as using copyrighted material as an object of social, political or cultural critique, quoting to illustrate an argument, capturing material incidentally while filming something else, and using material to tell a historical story. Insurers recognize the statement, but each use must still be analyzed.

Other exceptions image makers use

American law includes several specific limits. A photograph or film of a building visible from a public place does not infringe the architectural work, although sculptures, murals and other artworks on or near buildings are not covered and may still need permission. Courts sometimes treat trivial, fleeting uses as de minimis, meaning too small to count as infringement; a poster barely visible for seconds may qualify, but courts differ and a featured artwork will not. Section 108 covers libraries and archives, and several provisions cover educational performance.

Moral rights

Moral rights protect the personal connection between authors and their works. They are separate from the economic rights of copyright, and in some countries they stay with the author even after the copyright is sold.

American moral rights are limited. The Visual Artists Rights Act of 1990 gives authors of works of visual art rights of attribution and integrity, including the right to prevent intentional distortion or modification prejudicial to their honor or reputation, and, for works of recognized stature, destruction. A work of visual art means a painting, drawing, print or sculpture in a single copy or a signed, numbered edition of 200 or fewer, or a still photograph produced for exhibition purposes only in such an edition.

Films, commercial photographs, works made for hire and most other works are excluded, so filmmakers and commercial photographers generally have no statutory moral rights. In Castillo v G&M Realty (2020), a federal appeals court upheld statutory damages of 6.75 million dollars against a developer who whitewashed the graffiti artworks of the 5Pointz site, showing that VARA can matter when films and shoots involve murals or artworks.

Attribution and integrity concerns also arise under contracts, trademark law (false designation of origin) and the rule against removing copyright management information. Credit provisions in guild agreements and licenses often do the work that moral rights do elsewhere, so filmmakers should negotiate credit and approval rights expressly.

When no exception applies: licensing

Most uses of other people's work in commercial projects need a license. Licensing is a negotiation, but it follows predictable patterns: identify the owner, describe the use precisely, agree on a fee and get the terms in writing.

• Identify the use: the medium (film, broadcast, streaming, social media, advertising), the territory, the term, the duration on screen and whether the work is featured or in the background.
• Identify the owner: a creator, an agency, a publisher, a record label, a stock library, an archive or an estate. Ownership may differ by country.
• Ask for the right scope: festival-only licenses are cheap but must be upgraded before distribution, while all-media worldwide licenses in perpetuity cost more.
• Get it in writing, including credit requirements, approvals and any restrictions.

Collective organizations administer some licenses in the United States. ASCAP, BMI, SESAC and GMR license public performance of music, SoundExchange collects digital performance royalties for sound recordings, the Mechanical Licensing Collective handles digital mechanical licenses, and the Copyright Clearance Center licenses text copying. Synchronization licenses for film and television are negotiated directly with music publishers and record labels (Lesson 6).

Documenting the decision

Whether you rely on an exception or obtain a license, document the reasons. For exceptions, the clearance log should record the purpose, the amount used, why less would not work, how the source is identified and who reviewed the decision. For licenses, file the signed license with the log entry. Buyers and insurers ask for this documentation, and if a claim arrives years later, it shows that the decision was careful and made in good faith.