Yes You Can - Where You Don't Even Need Fair Use
Peter Jaszi
April 1, 2008
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 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 Amendmentprotected 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.
.. Finally, documentary filmmakers generally don't need to be concerned
about infringing trademark rights by showing a logo on a T-shirt , the
name of a household product, or the outline of a famous building. These
sorts of incidental uses don't confuse the public or suggest an
endorsement by the owner of the mark. In unusual situations where their
use of commercial imagery might reflect badly on a product or the
company behind it, filmmakers should seek legal advice.
