Many people ask us about the fair use defense for “News” or “Documentaries.” For instance, we have answered several versions of this question:

When it comes to using others copyrighted material for use in the News or a Documentary Film I have the understanding that there is a lot more leeway with what can be used? For example if I were doing a documentary or news story about boats could I use some clips from the movie Titanic?

 

Our answer is:

The Copyright Act gives the owner of a copyrighted work five exclusive rights: (1) the right to reproduce the work; (2) the right to prepare derivative works; (3) the right to distribute the work; (4) the right to publicly perform the work; and (5) the right to publicly display the work. See 17 U.S.C. § 106. As the Supreme Court puts it, “Anyone who violates any of the exclusive rights of the copyright owner, that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, is an infringer of the copyright.” Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 433, 104 S. Ct. 774, 78 L. Ed. 2d 574 (1984) (Internal citations omitted; emphasis added).

 

Fair use is only a defense to infringement.  This means that a copyright owner may file a lawsuit against a defendant, even if a court later finds that the defendant’s use is “fair use.” Thus, in a case for copyright infringement, the defendant must begin the expensive and time-consuming process of litigation before he or she can argue  a “fair use” defense to the court.

 

The fair use defense may protect material used for news reporting purposes.  Specifically, the preamble of section 107 of the Copyright Act sets out a non-exhaustive list of possible fair uses, such as “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” However, it is important to note that the preamble of section 107 only illustrates possible examples of fair uses. Courts must consider all four factors set forth in section 107 to determine fair use, and cannot simply classify a work as “fair use” because it fits into the category of “news reporting.”  See Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561, 105 S. Ct. 2218, 2231, 85 L. Ed. 2d 588 (1985); see also Pac. & S. Co., Inc. v. Duncan, 744 F.2d 1490, 1495 (11th Cir. 1984) (calling the preamble illustrative, but the four factors of fair use are mandatory to fair use analysis). The fact that a work is created for the purposes of news reporting is only one possible element to understanding one factor in the analysis.  As a result, there is no blanket news reporting privilege to infringement.

 

The Supreme Court has stated that “the results of [all four factors] are to be weighed together” when determining fair use. Campbell v. Acuff-Rose Music, 510 U.S 569, 578 (1994). These four factors are:

(1)  the purpose and character of the accused infringer’s use;

(2)  the nature of the copyrighted work;

(3)  the amount and substantiality of the portion used; and

(4)  the effect of the use on the potential market for or value of the copyrighted work.

 

The first factor is where most courts address the question of use of a copyrighted work for news or documentary purposes. The first factor evaluates such aspects as whether the infringing use is for commercial purposes, and whether the infringing use is “transformative” in such a way that the infringing work makes a different statement than the copyrighted work. Id. at 579; see also Harper & Row, Publrs. v. Nation Enters., 471 U.S. 539, 563, 105 S. Ct. 2218, 85 L. Ed. 2d 588 (1985).  The more “transformative” the infringing work, the more the scales tip in favor of fair use. The more commercial (for profit) the infringing work, the more the scales tip against a finding of fair use. While news reporting is often considered a “productive purpose,” it is not automatically transformative. Courts will analyze how transformative the reporting is, and weigh its commercial purpose.  See Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987, 994 (9th Cir. 1998) (weighing the first factor against a defendant who took news footage of the LA riots created by the plaintiff and distributed the footage to third-party news organizations, eventually denying the fair use defense entirely in that case). In short, courts consider use for news or documentary purposes in their analysis of the first fair use factor, but can still deny a finding of fair use overall.

 

The second factor addresses the creativity and level of protection given to the copyrighted work, while the third factor analyzes whether the infringer used a significant amount of the copyrighted work. See Harper & Row, Publrs., 471 U.S. at 563-64. The fourth factor takes into account missed licensing opportunities, and how the copyright owner is affected by the infringing use. Id. at 564-565.  Courts have consistently called the fourth factor “undoubtedly the single most important element of fair use” and analyze it not only based on any actual harm the infringement has caused the plaintiff, but any potential harm that could result. See Id. at 566-67.

 

While news reporting is helpful in finding in favor of fair use, the ultimate question cannot be resolved on that fact alone.  See Id. at 563 (stating that the “law generally recognizes a greater need to disseminate factual works [such as news reporting] than works of fiction or fantasy” but an act of news reporting may be defenseless when acting with unfair competition, with bad faith, or with “an illegitimate purpose of supplanting the copyright owner’s right of first publication.”).

 

In your case, you have presenting the example of using film clips from the movie Titanic in a news report or documentary about sharks.  The application of the defense to the proposed situation could work as follows:

1)    Nature and Purpose: A court would analyze how transformative the infringing news report/documentary was in using the Titanic footage, and whether this news report/documentary did so with a commercial purpose.  Taking clips out of the movie Titanic and presenting them in a different context is debatably transformative use. The more the report comments or criticizes the footage used from Titanic, the more likely that this factor would tip towards fair use.

2)    Nature of the Copyrighted Work: Titanic, the film by James Cameron, is likely given strong copyright protection as a work of fiction.

3)    Amount: This would depend on the ultimate use of how much footage from Titanic was used.  However, taking even a small portion of a work, down to a few clips or frames, may be considered substantial enough to find infringement. See Roy Exp. Co. Establishment of Vaduz, Liechtenstein, Black Inc., A. G. v. Columbia Broad. Sys., Inc., 503 F. Supp. 1137, 1144-45 (S.D.N.Y. 1980) aff’d sub nom. Roy Exp. Co. Establishment of Vaduz, Liechtenstein v. Columbia Broad. Sys., Inc., 672 F.2d 1095 (2d Cir. 1982) (holding that taking of 55 seconds out of 1 hour and 29–minute film deemed qualitatively substantial to find infringement).

4)    Effect on the Potential Market: There are at least two relevant markets at issue here: the market for the film Titanic itself, and the market for licensed film clips from the movie Titanic.  Finding fair use here could depend on (among many things) 1) whether the film Titanic continues to be marketed and sold, 2) evidence of how much clips from Titanic are presently licensed, and 3) whether or not the clips from the movie Titanic are attributed to the film in the report/documentary.  See Hofheinz v. A & E Television Networks, 146 F. Supp. 2d 442, 448-49 (S.D.N.Y. 2001) (eventually holding that film clips taken for an A&E biography on actor Peter Graves were used with fair use when biography was sufficiently transformative, the clips used were brief, and the plaintiff did not meet its burden to demonstrate it presently marketed the film or had any kind of licensing market for its clips).  The Hofeinz case presents a fairly similar situation to the one here- but may be quite distinguishable.  The film in that case was an older, forgotten b-science fiction film from the 1950’s, and presented a situation where the plaintiff could not adequately demonstrate it maintained any present market, either in the film itself or in licensing.  See idTitanic, on the other hand, is a well-known blockbuster film, and one of the most profitable movies ever made.  It continues to be sold and marketed to this day, and clips from it could bring revenue to its owner via a licensing scheme.

 

Therefore, a court may find the effect of using a clip from Titanic would deprive the copyright owner(s) of the Titanic film from licensing revenue.  If anyone could use clips without paying a licensing fee, it may have the substantive effect of damaging the marking for Titanic licensing.

 

As the above analysis demonstrates, the use of film clips in a news report or a documentary is not automatically fair use, and a finding of fair use depends on a variety of factors.  In short, the fair use defense may not apply to your hypothetical.