Fantastic news from Stanford Law School's Fair Use Project: documentarians who follow the Center for Social Media's Documentary Filmmakers' Statement of Best Practices in Fair Use can now get "errors and omissions" insurance from Media/Professional Insurance. The key was cementing a promise of pro bono or reduced fee representation to documentaries that follow the Best Practices guidelines:
Working with Media/Professional, and Michael Donaldson, the Fair Use Project has now found a way to insure films that follow the Best Practices guidelines. For films that are certified to have followed the Best Practices guidelines, Media/Professional will provide a special (read: much lower cost) policy; Stanford's Fair Use Project will provide pro bono legal services to the film. If we can't provide pro bono services, then Michael Donaldson's firm will provide referrals to a number of media lawyers who will provide representation at a reduced rate. Either way, filmmakers will be able to rely upon "fair use" in the making of their film. The Fair Use Project and Donaldson will defend the filmmakers if their use is challenged. Media/Professional will cover liability if the defense is not successful.
Generally, the biggest hurdle facing creators who rely on fair use is that they can't get insurance for their projects. And without insurance, almost no major TV network or film distributor will put your project on the air or into distribution. That's why this is such big news -- if this catches on, we can all expect to see much more of the fair use to which we are all entitled.