For Independent Filmmakers
Welcome
Our Independent Filmmaker pages are loosely organized in the chronological order of legal and business matters you might face throughout your project -- from treatment to final cut. Please help us improve our site. If you notice an error or have a suggestion for a link or additional information, please contact us.
THIS WEB SITE HAS BEEN PREPARED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND IS NOT LEGAL ADVICE OR A LEGAL OPINION. ONLY YOUR ATTORNEY CAN ADVISE YOU ABOUT WHICH LAWS ARE APPLICABLE TO YOUR SPECIFIC SITUATION.
The Public Domain
Works in the public domain can be used freely without permission. Examples include works created by federal government employees as part of their jobs and works in which copyright protection has expired. Determining the copyright term for a work created before 1978 can be tricky, but if the work was published or registered before 1925, it is probably in the public domain. You may want to consult a chart that outlines copyright terms.
It is important to note that there may be valid copyrights in derivative works based on works that have fallen into the public domain. New versions include musical arrangements, adaptations, revised or newly edited editions, translations, dramatizations, abridgements, compilations and works re-published with new material added. Derivative works are independently copyrightable. However, the copyright in the new work does not affect or extend the protection, if any, in the underlying work.
You may be able to conduct your own public domain research following the guidance offered in the resources listed below. If you cannot find a clear answer, consult a qualified attorney.
For more information on public domain rules, check out:
Stanford’s Copyright & Fair Use site.
Also recommended:
The Public Domain by Stephen Fishman
The Copyright Handbook by Stephen Fishman
There are certain situations when you won’t be punished for using another’s copyrighted work without permission or clearance. The fair use doctrine, which has a close counterpart in trademark law, is based on the belief the public should have some access to copyrighted works for purposes of comment (including parody) and criticism, teaching, scholarship and news reporting.
Fair use doctrine is both flexible and unpredictable. Congress wrote the fair use doctrine into the Copyright Act of 1976. That’s both good news and bad news for anyone who wants to use another person’s work without permission. It’s good news because the law says you can “borrow” so long as it’s fair to do so. It’s bad news because determining what’s fair is subject to interpretation.
The distinction between fair use and infringement is often unclear. There is no specific number of words, lines or notes that may be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The statute does set out four factors to be considered in determining whether or not a particular use is fair:
• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.
These four factors and a fifth — are you good or bad? — are explained in more detail on the Stanford law school site.
Increasingly, documentary filmmakers are relying on A Documentary Filmmakers’ Statement of Best Practice in Fair Use to determine what constitutes fair use. For more information on this topic, please see our section on the Clearance Culture.
Parody
Parodies are a form of creative criticism, and are often protected by fair use and free speech. A parody ridicules or provides social commentary of another work, and it is understood that this cannot be done without conjuring up the original.
Beware: using another’s creative work in a humorous way does not automatically mean the work is a parody. You can’t just change the title of a song or have an impressionist sing the lyrics in a funny way. To be safe, ask a copyright lawyer whether or not you can proceed without obtaining permission.
For a more detailed discussion of parody and fair use, see “Parody: Fair Use or Copyright Infringement” by Lloyd L. Rich. For a discussion of parody and free speech, see “Parody and Satire” by Kyonzte Hughes.
Next: The Clearance Culture
