February 15, 2007 | By Hugh D'Andrade

Film Insurers Recognize Fair Use

Copyright law has long caused headaches for documentary filmmakers. Fair use allows for the use of brief excerpts of copyrighted material, but that doesn't stop some copyright holders from threatening lawsuits and demanding exorbitant licensing fees. Unless they clear every snippet, filmmakers are generally unable to get "errors and omissions" insurance, and, without that, it's basically impossible to get a film distributed and released in the theaters or TV.

To help clarify the principle of fair use, a group of five national filmmakers organizations put together a Statement of Best Practices in Fair Use in 2006. The Statement provides guidance for lawyers, broadcasters and insurers as to what constitutes fair use.

And happily, the Statement has had a dramatic effect. Cable programmer IFC has been guided by the Statement in deciding what documentaries to air, and now insurers are using it to extend coverage for filmmakers. National Union, a major insurer, has recently adjusted its policy to extend coverage for fair use. Filmmakers can now purchase insurance provided an attorney with experience in copyright law is willing to attest that the film falls within the fair use as defined in the Statement.

This is tremendous news for independent filmmakers, who should find it easier to make their art and inform the public without fear of being shut down by legal threats. As Professor Bill McGeveran suggests at the Info/Law blog this could also be "a powerful approach" for other creative communities "to preserv[e] fair use without direct legal action." Let's hope so.


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