Fair Use, Film, and the Advantages of Internet Distribution

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Most filmmakers know at least a little about "fair use," the copyright doctrine that permits the use of copyrighted works in certain circumstances without having to get the owner's permission. But when a filmmaker faces a difficult rights clearance issue, fair use is often of little comfort, thanks to the attitudes of traditional "gatekeepers"—insurers, exhibitors, broadcasters, and distributors. In the words of producer Jeffrey Tuchman, "I haven't used fair use in the last ten years, because from the point of view of any broadcast or cable network, there is no such thing as fair use." ¹

Traditional media gatekeepers generally insist that clearances be obtained for every scrap of copyrighted material that appears in a film, even where the fair use doctrine should make a clearance unnecessary. Because of this attitude, many films are never made, and many others, even if made, are never distributed. As a result, the American public has never enjoyed the full measure of expression that fair use is meant to protect. And it appears that this "clearance culture" is only getting worse where traditional media outlets are concerned—insurance rates are increasing, legal fees are rising, and clearances are eating up ever larger portions of filmmakers' budgets. ^2"