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Use of footage in a documentary

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Braker

Junior Member
#1
What is the name of your state (only U.S. law)? New Mexico

First of all, thanks for any assistance!

I'm currently producing an authorized documentary about a retired adult film star. In the course of the documentary, I'd like to show about 10-20 seconds of non-sexual footage from a couple of her past films.

These were produced nearly 30 years ago, and some of her scene partners in said footage are no longer alive. It has been nearly impossible to track down the owner of the rights.

Am I allowed to show footage for "educational" purposes under fair use? Trying to track down the legal rights owners is not feasible, especially in such a shady industry where people rarely use their real names and leave a minimal paper trail.

I will be getting a E&O Insurance policy, as required by all distributors. Thanks again for any advice and insight.
 


Braker

Junior Member
#3
If you don't have permission and you're making a commercial film, then don't use the clips.
I see it done all the time, with credit given to the rights owners. I see news stories and magazine shows that show footage of other works, with credit given.

Is there an exception that can be made? What are the legal ramifications for using footage from a 30 year old obscure adult film in which the owners can't be located?
 

xylene

Senior Member
#4
I see it done all the time, with credit given to the rights owners.
Who you don't know.

I see news stories and magazine shows that show footage of other works, with credit given.
Your piece is not journalism.

Is there an exception that can be made? What are the legal ramifications for using footage from a 30 year old obscure adult film in which the owners can't be located?
You should have a documentary film industry lawyer give guidance on the exact risk specific to your film.
 

Braker

Junior Member
#5
Who you don't know.


Your piece is not journalism.


You should have a documentary film industry lawyer give guidance on the exact risk specific to your film.
I can't know everyone. If I did, I'd know who owns the rights.


I don't consider Inside Edition, A Current Affair, or Hard Copy to be "Journalism," but I see your point.


Perhaps, especially since I don't know your qualifications to speak on such matters. I do appreciate the response nonetheless. Thank you.

Anyone else have any insight to this scenario?
 

Zigner

Senior Member, Non-Attorney
#6
I can't know everyone. If I did, I'd know who owns the rights.


I don't consider Inside Edition, A Current Affair, or Hard Copy to be "Journalism," but I see your point.


Perhaps, especially since I don't know your qualifications to speak on such matters. I do appreciate the response nonetheless. Thank you.

Anyone else have any insight to this scenario?
Yep - talk to an attorney...that's my insight.

PS: E&O insurance may not cover intentional acts of infringement.
 

xylene

Senior Member
#7
Perhaps, especially since I don't know your qualifications to speak on such matters. I do appreciate the response nonetheless. Thank you.
Your welcome, I'm a peer consumer advisor. I'm not a lawyer. Persons claiming to be lawyers on this site are vetted by the admins.

you may find this interesting:

http://cdas.com/scenes-pornographic-film-biopic/

I don't in any way intend this to imply you can simply use the footage. But you need context specific review by a lawyer who can go to bat on their advise. Documentary filmmakers get sued all the time. Good luck.
 

Braker

Junior Member
#8
Your welcome, I'm a peer consumer advisor. I'm not a lawyer. Persons claiming to be lawyers on this site are vetted by the admins.

you may find this interesting:

http://cdas.com/scenes-pornographic-film-biopic/

I don't in any way intend this to imply you can simply use the footage. But you need context specific review by a lawyer who can go to bat on their advise. Documentary filmmakers get sued all the time. Good luck.
Very interesting. Thanks for sharing that link.

I think the fact that the subject of my documentary was never a big "star" in that industry might give me some latitude. I could see a difference if I was making a documentary about Jenna Jameson or someone that had successfully crossed into mainstream media as opposed to a more relative unknown.

Thanks again.
 
#9
You realize that it isn't the pornstar that owns the film you are wanting to use a piece of, right?

Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years.

For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.

All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002. And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047.

https://fairuse.stanford.edu/overview/faqs/copyright-basics/
 

Braker

Junior Member
#10
You realize that it isn't the pornstar that owns the film you are wanting to use a piece of, right?

Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years.

For works published after 1977, the copyright lasts for the life of the author plus 70 years. However, if the work is a work for hire (that is, the work is done in the course of employment or has been specifically commissioned) or is published anonymously or under a pseudonym, the copyright lasts between 95 and 120 years, depending on the date the work is published.

All works published in the United States before 1923 are in the public domain. Works published after 1922, but before 1978 are protected for 95 years from the date of publication. If the work was created, but not published, before 1978, the copyright lasts for the life of the author plus 70 years. However, even if the author died over 70 years ago, the copyright in an unpublished work lasts until December 31, 2002. And if such a work is published before December 31, 2002, the copyright will last until December 31, 2047.

https://fairuse.stanford.edu/overview/faqs/copyright-basics/
I am aware she does not own the rights. If I did think that I wouldn't be going through this trouble of trying to find out the legal aspects. Believe me, if she owned the rights my life would be a lot easier and she'd be a lot richer.

I understand Copyright law, but it gets hairy when you deal in Fair Use. There seems to be a lot of grey areas and contradictions in the interpretation of the law. I could argue my documentary is "Educational," yet can also be argued that it's "Commercial."

If laws were black and white, we wouldn't need attorneys. For all I know, those videos were never registered with the Library of Congress. That opens up a whole new set of questions...
 

Braker

Junior Member
#12
Get a lawyer or do what you want and risk a lawsuit. Your choice. You have been given good advice here.
Telling someone "get a lawyer" on a legal forum isn't "good advice." It's not advice at all. That's usually what people say when they have no advice. I'm not here to argue, so thank you for your responses, just the same. Peace.

I plan to consult an attorney but wanted to get some perspective and hopefully have more options to discuss beforehand. I'd like to have my ducks in a row before I commit to hiring a lawyer.

If there is anyone else that has some profound insight, I'd appreciate any advice.
 

xylene

Senior Member
#14
Telling someone "get a lawyer" on a legal forum isn't "good advice." It's not advice at all. That's usually what people say when they have no advice. I'm not here to argue, so thank you for your responses, just the same. Peace.
It is solid advice. Many people seeking advice here have simple issues that are easily resolved DIY. Others have situations that are readily answered via law or case law.

In your case, there is no simple legal answer for your complex and singular legal problem, other than best case you need to find those copyright holders, have a lawyer help you with that and weigh the risks if you proceed or tell you not to use the footage.

No one has told it will be easy or there is a ready answer, and I hope that hasn't sullied your experience too much.
 

Braker

Junior Member
#15
It is solid advice. Many people seeking advice here have simple issues that are easily resolved DIY. Others have situations that are readily answered via law or case law.

In your case, there is no simple legal answer for your complex and singular legal problem, other than best case you need to find those copyright holders, have a lawyer help you with that and weigh the risks if you proceed or tell you not to use the footage.

No one has told it will be easy or there is a ready answer, and I hope that hasn't sullied your experience too much.
All legal experiences have sullied my opinion of the legal system. Alas, it is what it is.

I ultimately will hire an attorney, but was hoping for some avenues to explore. I'm particularly curious to see if "Fair Use" is an option for me.

Unfortunately, there are a lot of Armchair Lawyers who dole out "advice" and when they can't expound upon their reasons, they pull the "get a lawyer" card. Anyone on the street can tell me to get a lawyer.

No hard feelings to anyone, and if someone has some new, valid perspective I'd love to hear it.
 
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