By Katelyn Murdock:
As of April 2023, Netflix has over 400 original documentary films and series available for streaming.[1] Documentaries have been on the rise in popularity for a number of reasons, from sheer availability via streaming services to the improvement in quality over the last several years.[2] Despite the surge in Netflix’s, and other streaming services’, production of original documentaries, the business of documentary filmmaking is a risky one.
Documentaries, while often containing original footage and other intellectual property materials, are comprised largely of the copyrighted works of others. As technology and access to that technology develops and engages the public, there are increasing volumes of content available for use, whether it come from social media sites like Twitter, Instagram, and TikTok; television and film; or forums for online commerce, communication, and creativity. This content can serve documentary filmmakers by bringing their stories to life with reactions to real-life events, evidence demonstrating cultural trends, providing context to varieties of art, and more. However, it is important to remember that a significant portion of this content has copyrights associated with it that could bring filmmakers liability for copyright infringement.
A copyright applies to expressive works such as written materials, music, movies, and photos.[3] It gives the copyright holder, usually the creator of the work, all rights pertaining to the work, including the rights to distribute, display, and reproduce the work.[4] Of course, anyone with permission from the copyright holder to use the work may do so; however, seeking permission can be an expensive process that many filmmakers may not be able to afford. Luckily for those filmmakers, however, Congress carved out a few exceptions in the Copyright Act that allow people to use copyrighted works without having to pay for permission or facing liability for copyright infringement. These exceptions are limited, though, and rely heavily on the purpose for which the work is being used; one such exception is the affirmative defense of fair use.[5]
A Filmmaker’s Guide to Fair Use
Fair use is a defense that filmmakers can bring to justify their use of copyrighted material in the event that a copyright owner sues them for infringement. It requires that the filmmaker use the work for purposes of commentary, critique, education, or research and provides a four-factor test to determine whether the use is fair.[6] First, it is important to note that the four factors are considered in light of all the circumstances. Fair use requires a determination of both law and fact; therefore, when these factors are evaluated, each factor may carry a different weight.[7] It is a balancing test that seeks to simultaneously protect the property rights of the copyright holder and the rights to free expression provided to filmmakers by the First Amendment.[8] Thus, there is no bright-line rule for a fair use determination; however, the following questions and principles should give filmmakers a better idea of how their work might stand up to a fair use evaluation.
- The first thing courts will consider in evaluating a documentary’s fair use of a copyrighted work is the purpose and character of the documentary.[9] Here, they ask: (1) is the use commercial, and (2) is the use transformative?
The commerciality aspect is determined by asking whether the filmmaker intends to make money off of their work. If the answer is yes, the work is commercial, and this consideration weighs against a filmmaker’s argument for fair use.[10] However, just because a work is commercial doesn’t necessarily mean the use of the copyrighted work can’t be fair. A work’s transformative purpose, as well as the other factors, may yet weigh in the filmmaker’s favor.[11]
A documentary is transformative when it uses the copyrighted work for a purpose that differs from the copyrighted work’s original purpose.[12] A common purpose of copyrighted works is entertainment. If a copyrighted work’s original purpose is entertainment, such as a movie, a filmmaker can’t use parts of the movie for entertainment purposes. The filmmaker needs a transformative use, such as using clips from the movie to make a commentary on the movie’s genre or telling the story about the lead actor’s career over time. Overall, the more transformative the work, the more this factor points to fair use.[13]
- A court will next look at the nature of the copyrighted work.[14] Here, they ask: (1) is the work factual or creative, and (2) is the work published or unpublished?[15] The more factually-based a copyrighted work is, the less copyright protection it receives. This is because ideas cannot be copyrighted; only the expression of those ideas can be copyrighted.[16]
Whether a work is expressive is sort of a sliding-scale evaluation in a lot of cases. Take a textbook about World War II for example: the book contains facts about people and events in World War II, and the book presents that information in a very matter-of-fact, no-fluff sort of way. Anyone could look at that textbook and use the facts in their own works however they like because the facts aren’t copyrightable. Even the expression here is not strongly copyrightable either; after all, how many different ways can you say that “World War II ended in 1945”? That is not to say that works like history textbooks aren’t copyrightable, just that because they have limited expressive/creative elements, they enjoy less copyright protection.[17] Now, imagine the author of the textbook decided to write a novel about World War II instead, depicting character dialogue, motivations, and themes. While the facts that drive the story may be the same as the textbook, the author has added expressive elements that are original to his novel. This version of World War II is far more expressive than the textbook version and so has more copyright protection. A completely fictional work would have even more protection.
With this in mind, a filmmaker should consider the copyrighted work they wish to use in their documentary and ask themselves whether the work is creative or factual. If the work is highly creative, this factor will lean in favor of the copyright holder.[18]
If a work is unpublished, the court has to balance the author’s right of first release with the right of freedom of expression.[19] Typically, a successful fair use defense is harder to get when a filmmaker uses a copyrighted work that is unpublished.[20] This is because when an infringer uses and publishes some part of an unpublished work in their own work, the unpublished work loses some value that it had in being new and unreleased. In essence, the infringer takes the value of novelty for his own; thus, in an effort to protect the value of unpublished works, courts apply a somewhat stricter standard for determining what is a fair use of an unpublished work. That is not to say that there can’t be fair use for an unpublished work, only that it is harder to show fair use for an unpublished work than for a published one.[21]
- For the third factor, courts look at the amount and substantiality of the portion used in relation to the copyrighted work as a whole.[22] This factor is essentially a reasonableness inquiry where courts ask whether the new work uses only as much of the copyrighted work as required to achieve the new work’s purpose.[23] Important considerations here are both quantitative and qualitative.
In the quantitative analysis, courts will ask how much of the copyrighted work the filmmaker used in their documentary. Generally, the more a filmmaker takes from a copyrighted work, the harder it’s going to be to show that the filmmaker used a reasonable amount. This is not always the case, however. A photograph, for example, is a work that is often used in its entirety, simply because using less than the whole thing often wouldn’t make much sense.[24] Other types of copyrighted works, however, might require a filmmaker to be more selective in what they choose to include in their documentary. For instance, a filmmaker probably shouldn’t use whole video recordings or songs without permission or at least a very strong connection to their transformative purpose; otherwise, the filmmaker risks the court deciding that the amount they used was not a reasonable amount to achieve their purpose.
In the qualitative analysis, courts will ask whether the filmmaker used the heart of the copyrighted work. While, generally, it’s safe to say that the less a filmmaker takes from a copyrighted work, the better, there are instances where using even small portions of copyrighted works is excessive in achieving their purpose.[25] Embodying the heart of a copyrighted work means taking the portion that makes the copyrighted work valuable. For example, the heart of a song or poem might be its most famous lines,[26] or the heart of a movie may be the scene that presents or resolves its greatest conflict.[27] Using elements like these in a documentary may weigh this factor in favor of the copyright holder. This is because, as we have seen, courts generally want to reserve the value of a copyrighted work for the copyright owner. Thus, even if a filmmaker doesn’t use a large percentage of a work, the filmmaker can still use the heart of it and turn this factor against them in their fair use defense.
- Fourth, courts will ask whether the documentary has an effect on the potential market for or value of the copyrighted work.[28]
In determining this factor, courts will ask whether the filmmaker’s documentary could act as a substitute for the original, copyrighted work.[29] This inquiry focuses on whether the documentary could steal consumers from the original work’s market. In other words, would people looking to buy the original be satisfied with the documentary and no longer have need of the original? If yes, the filmmaker has usurped part of the market of the original work, thus causing market harm. For example, if a filmmaker uses a substantial portion of a music video in their documentary, some people might not feel the need to go watch the original because they feel like they’ve already seen the video by watching the documentary.
This question also incorporates the transformative consideration discussed above. The more transformative the filmmaker’s work is, the less it accomplishes the same purpose as the original. Accordingly, the more the purposes differ, the less the filmmaker’s work can fill the shoes of the original and harm its market.[30]
Courts will also consider whether the filmmaker’s use could adversely affect the existing or potential market for the copyrighted work if that use became widespread.[31] Adversely affecting the potential market means taking an opportunity in the original copyrighted work’s market. If a filmmaker’s use is something the creator of the original work could do to capitalize on the popularity of their work, that’s their potential market (i.e. creating merchandise, making a compilation of works, or writing a sequel). Courts protect this potential market on behalf of the copyright holder because, yet again, they want to ensure that the copyright owner gets to benefit from the value their work has in society. However, this interest is not absolute, as demonstrated by the courts’ allowance for the fair use of a copyrighted work.
The inquiry here looks at widespread use; that is, would the filmmaker’s use, though perhaps insignificant in one instance, be harmful to the copyright holder’s potential market if many people did the same thing? In the context of documentaries, a common market is going to be that of licensing. If a filmmaker uses a copyrighted work in their documentary and doesn’t pay a licensing fee, other people might start doing the same, causing market harm to the copyright owner in the form of lost licensing fees. If this is the case, this factor may weigh against the filmmaker’s fair use defense.
Courts have noted, however, just because something can be licensed doesn’t mean there is market loss; there needs to be a likelihood that the market would exist if the copyright holder chose to take advantage of it (in other words, would people actually want to use the work and thus owe a licensing fee? If it’s not likely that anyone would want to use the work, there may not really be a potential market to harm).[32] Also, note that harming the market does not include when a work critiques the original work and thus taints its view in the public eye, resulting in decreased popularity.[33] Harming the market means taking the copyright owner’s opportunity to take advantage of the potential market for their copyrighted work.[34] Accordingly, if a filmmaker usurps the market of another copyrighted work by using that work in their documentary, this factor will not point in favor of their fair use defense.
These four factors, when weighed together and considered using the questions presented above, should give a filmmaker a good idea of whether they could bring a successful fair use defense in the event that they are sued for copyright infringement. It is important for filmmakers to make these considerations before they begin their work, as the liability they may face for infringing a copyrighted work can be substantial. While these considerations may be discouraging to the aspiring documentary filmmaker, the protection copyright provides creators will also apply to them and their works, thus reserving the value of their works for their own benefit and making the complicated web of copyright law worth navigating.
[1] See Netflix Original Documentary Television Series, https://en.wikipedia.org/wiki/Category:Netflix_original_documentary_television_series; Netflix Original Documentary Films, https://en.wikipedia.org/wiki/Category:Netflix_original_documentary_films.
[2] Maria Sherman, Documentaries Are Booming — Here’s Why We Can’t Get Enough, Netflix.com/Tudum (Mar. 1, 2022), https://www.netflix.com/tudum/articles/netflix-documentary-renaissance-kanye-west.
[3] See 17 U.S.C. § 102.
[4] See 17 U.S.C. § 106.
[5] See 17 U.S.C. § 107.
[6] Id.
[7] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).
[8] See Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003); Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560 (1985).
[9] See 7 U.S.C. § 107(1).
[10] Campbell, 510 U.S. at 585.
[11] Id.
[12] Id. at 579.
[13] Id.
[14] See 17 U.S.C. § 107(2).
[15] See Cariou v. Prince, 714 F.3d 694, 709–10 (2d Cir. 2013).
[16] 17 U.S.C. § 102(b).
[17] See Harper & Row, 471 U.S. at 547–48.
[18] See Stewart v. Abend, 495 U.S. 207, 237–38 (1990).
[19] Harper & Row, 471 U.S. at 552.
[20] Id. at 554.
[21] Id.
[22] See 17 U.S.C. § 107(3).
[23] Campbell, 510 U.S. at 586.
[24] See Bill Graham Archives, LLC v. Dorling Kindersley Ltd., 386 F. Supp. 2d 324 (S.D.N.Y. 2005) (defendants used whole concert posters in a book about The Grateful Dead’s career).
[25] Campbell, 510 U.S. at 587.
[26] See Brown v. Netflix, Inc., 462 F. Supp. 3d 453 (S.D.N.Y. 2020).
[27] See Hofheinz v. Discovery Communs., Inc., 2001 U.S. Dist. LEXIS 14752 (S.D.N.Y. 2001).
[28] See 17 U.S.C. § 107(4).
[29] Campbell, 510 U.S. at 591.
[30] Cariou, 714 F.3d at 709.
[31] Campbell, 510 U.S. at 590.
[32] See Am. Geophysical Union v. Texaco Inc., 60 F.3d 913, 930 (2d Cir. 1994).
[33] Campbell, 510 U.S. at 591–92.
[34] Id.
TRANSACTIONS 
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