A federal court recently ruled that an unauthorized use of film clips in a documentary film satisfied the requirements of the fair use exception under the Copyright Act. In National Center For Jewish Film v. Riverside Films, LLC (C.D. Cal. Sept. 14, 2012), the defendants made a documentary film entitled Sholem Aleichem: Laughing in the Darkness about the 19th century Yiddish author Sholem Aleichem which examined the past 150 years of Jewish history. The National Center for Jewish Film (NCJF) sued the filmmaker for copyright infringement and claimed that the filmmaker used clips in the documentary from four of its copyrighted films without permission. The total amount of footage from the four films used in the documentary ranged from 22 seconds to one minute and 24 seconds, which amounted to 0.4% to 1.5% of the original films.
The Central District of California dismissed the NCJF’s claims on a motion for summary judgment and found that the use of the clips in the documentary was fair. In weighing the fair use factors, the court ruled that the documentary made a transformative use of the clips, noting that the use of voiceover narration and “scholarly commentary” running throughout Sholem Aleichem “add[ed] something new to the underlying works.” Further, the court noted that the use of the clips was minimal and part of a montage with other non-copyrighted scenes, aiding its conclusion that the defendants’ use was transformative. Although the NCJF, a non–profit company, argued that the documentary was commercially exploited, the court did not find that argument dispositive. Lastly, NCJF argued that the defendants should be barred from using the fair use defense based on bad faith in that defendants contacted NCJF, obtained copies of the films and then failed to pay its license fee. Conversely, defendants’ asserted that the clips were obtained through an archival clip licensing company. The court found the defendants’ activity reasonable, however, based on the tenuous copyrights and belief in their fair use rights.
Underlying the decision were questions regarding the copyrightability of these older films and whether they may have been in the public domain, as only the English translation and subtitles were registered in the US with respect to two of the films. Because the case was dismissed under the fair use defense, the court did not rule on the other defenses.
Documentary filmmakers have frequently been successful in asserting the fair use defense, relying on the educational purpose and the limited use of the unlicensed material. In Monster Communications, Inc. v. Turner Broadcasting Systems, Inc., 945 F. Supp. 490 (S.D.N.Y. 1996), defendant Turner Broadcasting made a documentary about Muhammed Ali called Ali – The Whole Story in which it used an aggregate of two minutes of clips from another documentary about Ali entitled When We Were Kings. Finding that Turner Broadcasting was likely to succeed on its fair use defense, the court observed that while the documentary was “commercial in nature, it undeniably constitutes a combination of comment, criticism, scholarship and research, all of which enjoy favored status” in a fair use analysis. In Hofheinz v. AMC, 147 F. Supp. 2d 127 (E.D.N.Y. 2001), the court found that the use of clips from films produced by American International Pictures (AIP) in a documentary about AIP’s founders and principals, James Nicholson and Sam Arkoff, was fair because “while plaintiff’s copyrighted movies aimed to entertain their audience, defendants’ documentary aims to educate the viewing public of the impact that Arkoff and Nicholson had on the movie industry.” Again, in Wade Williams Distribution, Inc. v. American Broadcasting Company, No. 00 Civ. 5002, (S.D.N.Y. Apr. 5, 2005), the court recognized ABC’s fair use of clips from several copyrighted sci-fi films in a Good Morning America segment that commented on and criticized the filmmakers’ portrayal of aliens and, the court found, used no more of the copyrighted films than was necessary to comment upon them.
This is not to suggest that the freedom of documentary filmmakers is limitless when it comes to using copyrighted works without authorization. In Elvis Presley Enterprises v. Passport Video, 349 F.3d 622 (9th Cir. 2003), defendant Passport Video created a 16-hour documentary about the life of Elvis Presley. The marketing materials boasted that the documentary box set contained every film and television appearance of Elvis Presley. After being sued by a consortium of copyright holders in Elvis Presley-related materials, the court rejected Passport’s fair use argument, holding that the clips of Elvis Presley’s various television and film appearances used in the documentary were repeated multiple times and, in many instances, constituted the heart of the original work. The court also stated that “voice-overs do not necessarily transform a work.”
Nonetheless, when examining the fair use factors in the context of documentary films, courts appear more willing to acknowledge that the educational and scholarly approach taken by many documentary filmmakers to a given subject matter goes a long way to making what might in another context be infringing, a transformative and non-infringing use. However, the individual fair use factors should not be viewed in isolation. As in the Passport Video case, courts are more reluctant to find fair use when the documentary takes substantial portions or the most important portions of the original work. As fair use must be analyzed on a case by case basis, it is not enough to rely on the fact that some documentary filmmakers have been successful in claiming fair use, each use needs to be analyzed in the context of the whole work to determine if it is more likely to be fair.