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Use of music in a Documentary

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Braker

Junior Member
Greetings, I hope someone out here can help me because no one I've spoken to at Ascap or the Copyright office can give me a straight answer.

I've recently created a Documentary based on a film from the 1970s. The producer of the film is my partner, and has granted use of footage in the film.

I'd like to use a couple of snippets of music within the original film. My question: is this permitted since he initially obtained the music rights back when the film was produced? And also, would not our Errors and Ommissions policy protect us from Copyright infringement?

Thanks for ANY assistance.
 


quincy

Senior Member
Greetings, I hope someone out here can help me because no one I've spoken to at Ascap or the Copyright office can give me a straight answer.

I've recently created a Documentary based on a film from the 1970s. The producer of the film is my partner, and has granted use of footage in the film.

I'd like to use a couple of snippets of music within the original film. My question: is this permitted since he initially obtained the music rights back when the film was produced? And also, would not our Errors and Ommissions policy protect us from Copyright infringement?

Thanks for ANY assistance.
What is the name of your state or, if not in the US, what is the name of your country?

Whether you can use snippets of music in your documentary without a license to use the music can depend on several factors, including what sort of license was granted the producer originally, who holds the copyrights currently, and how large the snippets are that you intend to use.

If your documentary is a critique or criticism of the previous film, what is used from the previous film in your film could be a permissible "fair use" of the material.

Errors and omissions insurance will not prevent a lawsuit nor will it help if infringement is willful.
 

Braker

Junior Member
Quincy,

Thank you for the informed response. I live in New Mexico.

Without giving too much away, I know my partner has the home media, television and theatrical rights to use the music in said film.

The documentary is a retrospective of the film, cast interviews, etc. The documentary was made to preserve the memories of the film and the struggles to get it made. I'd like to use 30 seconds of one song at the beginning and 30 seconds of another at the end.

Also, wouldn't E&O cover any potential infringement claims? Thanks again.
 

quincy

Senior Member
Quincy,

Thank you for the informed response. I live in New Mexico.

Without giving too much away, I know my partner has the home media, television and theatrical rights to use the music in said film.

The documentary is a retrospective of the film, cast interviews, etc. The documentary was made to preserve the memories of the film and the struggles to get it made. I'd like to use 30 seconds of one song at the beginning and 30 seconds of another at the end.

Also, wouldn't E&O cover any potential infringement claims? Thanks again.
To answer your last question first: A common errors and omissions policy exclusion is coverage related to intentional wrongful acts or illegal acts. A copyright infringement suit claiming willful infringement will, as a rule, not be covered.

It appears to me, from what you describe, that your use of the music in your documentary would be judged a fair use of the material. However, fair use is not permission to use copyrighted works. It is an affirmative defense to the use of copyrighted works - a "yes I infringed but it is okay" defense. Whether a use is a fair use would ultimately be decided by a court if the copyright holder objects to the use and sues for infringement.

In other words, it can be a risk to rely on fair use when using copyrighted works that belong to others. It is always best to get permission from copyright holders prior to using their material, even when permission might not be necessary.

I am going to provide you with a link to the Center for Media & Social Impact, which I find a valuable resource. The link will direct to the "Documentary Filmmakers' Statement of Best Practices in Fair Use," but I suggest you explore the site. I think you will find the information on the site helpful to you as s filmmaker.

http://cmsimpact.org/code/documentary-filmmakers-statement-of-best-practices-in-fair-use/

Good success with your documentary, Braker.
 

FlyingRon

Senior Member
Of course, the way to be sure is to hunt down the rights holder of the music and get permission. There are firms called "music clearance" businesses that specialize in figuring this out. You may wish to become familiar with this if you go beyond what is defensible fair use (while I agree with Quincy that it sounds like fair use here, there isn't enough detail to tell). As Quincy says, fair use won't stop you from being sued, just keep the plaintiff from prevailing.

ASCAP won't give you an answer because they are not involved in this, really. They are a performing rights organization. When your movie is publicly performed, the venue better have the appropriate performance licenses (but that's not your problem).
 

quincy

Senior Member
Although from what has been said, it appears the cast in the original film is being interviewed for the documentary (indicating their consent to be featured), publicity rights potentially can be a concern as well. It is recommended that releases are signed by all who will be appearing.
 

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