Documentary.org has a wonderful write-up by Tamsin Rawady and Alex Buono about fair use in the documentary film setting. As the writers/producers of Bigger Stronger Faster, a documentary about pop cultural influences driving performance-enhancing drug use, they grappled with how to tell their story legally:
The first problem we encountered is that it seemed like Fair Use was sort of an urban legend: Does it really exist? Can you really use archival clips without licensing them? And does anyone understand how this all works?
Fortunately, Rawady and Buono retained excellent legal counsel who were able to walk them through the issues and get them a highly defensible final cut, though even that wasn’t easy:
After the film has been released, expect to get calls from copyright holders upset about your use of their footage. Most copyright holders have never heard of Fair Use, and you should allow some money in your budget to have your attorney call and talk through the evidence you have. If you have been responsible in your Fair Use decisions, most complaints will only require one phone call from your attorney to make them go away. We encountered a handful of copyright holders from some very large corporations who were not pleased that their clips had been used in our film, but we were well prepared by our attorneys and had no problem avoiding any legal claims. [emphasis added]
I’m certainly happy that it worked out better for Bigger Faster Stronger than it did for Slaying the Dragon: Reloaded. Rawady and Buono’s story reminds us that, in law as in life, (1) an ounce of prevention is often worth a pound of cure and (2) the best (fair use) defense is a good (proactive) offense.
Further resources and reading: