News Footage in Documentaries

Entertainment Lawyer Question and Answer Forum:

Welcome to this week's Entertainment Lawyer Q&A, published by The Film & Television Law Quarterly and the entertainment law firm of BLAKE & WANG P.A. Each week an entertainment lawyer will respond to reader questions and publish the best discussions.

Have a question for an entertainment lawyer? Post it on our website at blakewang.com and get the answers you need.

Question:

Question about using news clips in a documentary: We're producing a documentary about a major criminal case revolving around a bank robbery ten years ago and one of our producers has been collecting news clips for years about the case from CNN, America's Most Wanted, Geraldo, etc.

We plan to use only a few seconds from each in a sequence to show how much interest the case generated. Can we just use the clips that were "ripped" from TV recordings, or do we need to get permission/pay/for each one individually?

Answer by Brandon Blake, Entertainment Attorney:

It certainly seems ubiquitous in feature films and documentaries to have the montages of breathless news reports about this or that subject as an easy way to introduce the audience to the topical or “real world” nature of the story.

Much of the confusion about the use of news footage actually comes from some of the special exceptions to copyright law that are available for the production of news footage provided for under the fair use doctrine of the U.S. Copyright Act. For television producers producing news programming, you can see one of my former articles here: http://www.blakewang.com/fairuse_lawyer.htm for information about whether the fair use doctrine might be applicable.

For the most part fair use is beneficial to the producer of news programming, rather than those seeking to license news footage. While certain factors of the test would support the fair use of news footage, given that news programming is hopefully factual work rather than fiction, the greatest problem for documentary filmmakers is that a market currently exists for licensing news footage, which tends to negate the other three factors of the fair use test.

From a practical standpoint, the fair use defense is just that, a defense. That means that to prove that a usage of copyrighted material is fair use you have to go to trial. Most film and television distribution companies do not want to go nearly that far defending the distribution of a property, and generally do not want to take any risk at all.

For that reason unlicensed use of news programming, even a few seconds worth, will typically prevent a producer from getting E&O insurance. Over the years I have noticed that a lot of E&O insurance providers no longer review films and documentaries they cover, and so therefore a lot of unlicensed footage does end up getting into distributed works. Producers should not assume there is no risk, however, because the insurance companies are relying on the blanket warranties that the producer is signing. If it turns out the producer breached these warranty clauses in the E&O insurance contract, the insurance company will not cover the loss or claims, leaving the costs and liability with the producer of the project.

So although there is some gray area, generally anyone producing a film or documentary intended for commercial release needs to license third-party news footage. Some alternatives would be to check with stock footage houses to find similar, royalty-free footage, or to produce the footage in-house. Commercial news footage, especially from the major networks, is expensive and it is licensed by the minute, meaning that 5 or 10 seconds is not a de minimis use. My firm has helped a lot of documentary film producers negotiate more reasonable rates, often substantially below the initial quote. Feel free to contact my firm for a quote if you decide to negotiate licenses with the networks.

As with any legal matter, please do not make a decision about complex matters without consulting an experienced entertainment attorney first. I have been representing feature film projects and television series for more than 14 years. Please feel free to contact my office about a quote.

- By Brandon Blake, Entertainment Lawyer

About the Editor:

Brandon A. Blake is an entertainment lawyer and producer who works with Academy Award winning actors, directors and filmmakers. A complete biography is available online.

About the Entertainment Lawyer Q&A: The Entertainment Lawyer Q&A does not create an attorney-client relationship, nor is the information treated as confidential. Responses to selected questions will be made public and shared with our subscribers. All entertainment law information is informational in nature and is not intended to be acted on without entertainment lawyer counsel.