When Fair is Foul: Why Fair Use Isn’t an Impenetrable Defense for Indie Films
This situation is probably familiar to you: You don’t own it and you need to use it.
Most films use or reference another work of art. Maybe it’s a popular song that will crescendo as your protagonists finally kiss. Or maybe your characters are watching a scene from Reservoir Dogsto teach themselves how to commit a heist. Or maybe you need to use news footage of whaling ships in your orca documentary. So how do you do that without getting sued for copyright infringement?
Well, duh: You license it! You figure out who the owner is, then you call or email them and ask for permission. Sometimes that means having to sign onerous-looking contracts and pay hefty fees, but if you want a foolproof plan for avoiding litigation as your film premieres, that’s what you do.
But maybe you can’t find the copyright owner, or maybe they’re being unreasonably restrictive, and the use of that material is still critical to your film. Will fair use protect you? Half the questions I get in my law practice deal with this issue. Unfortunately, fair use is badly misunderstood and misapplied. Let me unravel its mysteries for you.
What is Fair Use?
Normally, using someone else’s copyrighted work without permission constitutes copyright infringement, since only the creator has the exclusive right to reproduce, sell or otherwise use it. However, fair use is a legal defense that allows you to legally use someone else’s copyrighted work without his or her permission …