April 27, 2009

What is off-limits to a documentary filmmaker?

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Fair use and ‘free use’: As a documentary filmmaker, when must I turn off my camera?

Guest post by Peter Jaszi
Professor of Law, Washington College of Law, American University

The answers to some of filmmakers’ most common clearance questions don’t really lie in the realm of “fair use” at all, but fall under the heading of “free use.” Some examples:

  • Buildings that can be seen from public areas can be filmed for any purpose. Although there has been copyright in architectural works in the United States since 1990, the U.S. Copyright Act includes an exemption for filming. It doesn’t matter whether the building is the subject of the film or an incidental background.
  • Federal government works enjoy no copyright protection whatsoever, whether they are the words of federal government employees or footage taken by camerapeople in civilian or military service. The purpose for which you use the material – as well as the source from which you obtain it – are irrelevant from a copyright perspective.
  • Public domain works (such as 19th century paintings or medieval manuscripts) in museums or private collections are free for use as well, if you have access to a reproduction. Many institutions claim copyright in their own photographs of old objects in their collections. But if you have a different source, you’re free to proceed, without a license from the collection.
  • For most documentary projects, filmmakers don’t have to be concerned about the so-called “right of publicity” that exists under some state laws. The cases (and sometimes the statutes themselves) make it clear that the right bars only the commercial exploitation of celebrities’ “persona,” and First Amendment-protected expressive uses are specifically exempted.
  • In answer to a common (but not intellectual property-related) question, documentarians don’t need photo releases from individuals who are filmed in parks, streets or other public places where they have no expectation of privacy. If you single out an individual for special attention, you may a need a release.
Peter Jaszi is professor of law and faculty director of the Glushko-Samuelson Intellectual Property Clinic at Washington College of Law, American University. This article originally appeared at American University’s Center for Social Media and is published under a Creative Commons license.. It is available in PDF form.
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