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Nordisk Panorama – Fair Use Seminar

Bergen by Night

Nordisk Panorama rotates between 5 Nordic countries every year, and this year it took place in the beautiful town of Bergen, Norway. It is a small Nordic affair but you can trust our Scandinavian friends to be uncompromising about quality.  The Forum was friendly, accessible and efficient. The seminars punctuated the day with the right amount of impact.

I attended the one on Copyright and Fair use in documentaries. Norwegian producers are starting to test the law with a few cases on the same basis that has been developed and argued in the States.  David Van Taylor, director/producer from Lumiere Productions in New York was invited to share his experience and the difficulties in using the Code of Best Practices in Fair Use, a document that clarifies when documentary filmmakers can use copyrighted material into their films without permission. An excellent move.

It was interesting to hear that this document came out of a series of open discussions amongst focus groups around USA, exploring what filmmakers’ practices were and what they considered fair use.  The debate was driven by two major questions:

1)     How are the films limited by copyright, or worse, what are the films that filmmakers would like to make and cannot due to copyright law, and

2)     Can we acknowledge that what we are doing is illegal and stop hiding in order to get away with it.

The questioning also led to the recognition that copyright is a balancing act because producers are on both sides of the equation (wanting to use material, but also protect their own). So the document was produced in order to create 4 categories which will justify and support the use of Fair Use:

Category 1: Employing copyrighted material as objects for social, cultural critique, counter-arguments.

Category 2: Quoting copyrighted popular culture material to illustrate a point

Category 3:  Capturing something (TV/Radio etc.) while filming something else

Category 4: Copyright material using historical using historical sequence

I find these categories hugely helpful in understanding how one would go about justifying the use of copyrighted material. It seems that our colleagues across the Atlantic have done a huge leap. Broadcasters have adopted best practice of Fair Use and insurance companies issue policies and act as garantors to broadcasters. Courts of Law have not made any official statements but they have not ruled against filmmakers either.  So far no cases in USA have been rejected.

American media sociologists say it is about power. They have an amusing analogy for the situation “people crossing a busy road – look right and then left – not to check the traffic light but in order to see if enough people are wanting to cross.”  Cars won’t run over people if enough of them are crossing!

So maybe this is a lesson for us, UK producers, to stop being intimidated by the law, to credit the material used illegally and maybe add at the end of our films:

“Brief quotations from this film may be used freely”.

Noe Mendelle

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One Response

  1. I am happy that the good news that documentarians in the U.S. are using their rights is being discussed! A correction though: as David made clear in his presentation, US producers are not doing anything illegal in employing their fair use rights. They are employing a part of US law that has been underused because of fear. Now that doc makers have clarified their interpretation of fair use, this part of the law is more useable. Europeans do not have this aspect of the law. In many countries, however, as Norwegians have discovered, the “Right of Quotation” exists and can be interpreted successfully to be more widely employed. Please consult our website, centerforsocialmedia.org/fair-use for more specifics on the US law.

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