‘Tiger King’ Ruling Could Limit ‘Fair Use’ of Video Clips in Documentaries

variety.com:

Gene Maddaus Senior Media Writer Filmmakers are warning that a recent ruling in a copyright suit against Netflix over its “Tiger King” docuseries could restrict the use of video clips in documentaries, and upset a long-held understanding of what constitutes “fair use.” The 10th Circuit Court of Appeals, based in Denver, ruled in March that the use of a 66-second excerpt from a funeral video was not “transformative” under the Copyright Act.

The three-judge panel remanded the case to a lower court to determine if Netflix violated the copyright of Tim Sepi, the videographer who shot the scene.

Netflix has petitioned the court to reconsider its decision, and has been joined by the Motion Picture Association, the International Documentary Association, Film Independent, and a host of media law professors in raising alarms about the potential chilling effect on non-fiction storytelling. “It’s a big deal,” said attorney Chris Perez, a co-author of “Clearance & Copyright,” a film industry guide to rights clearance issues. “It disrupts the common practice that documentary filmmakers have been employing for the last couple decades.” Documentaries often pay to license archival footage.

But sometimes the copyright holder cannot be found, or refuses to grant a license, or demands too high a price. In those cases, the filmmakers may invoke the “fair use” exception under the Copyright Act, which allows the use of copyrighted material under certain conditions, especially if the use is “transformative.” True crime documentaries — which have exploded over the last decade — often rely heavily on old news clips or online video obtained without a license.