Q: I’m a documentarian. If I were to record a live show as part of a documentary — audio and visual — am I free to use it even if there’s live music being played in the background?

A: Look, I’m no math magician, but one of the things I always liked about math is that it’s a world of definitive answers. In my simplistic view, the world to a mathematician is one big black and white cookie. It may be a complicated black and white cookie, but it’s black and white nonetheless.

I, for some reason, chose to be a lawyer. In the world of law, nothing is black and white. It’s all grey. And if we’ve learned anything from grey gooMay Grey, people who spell grey “gray,” and Grey’s Anatomy, it’s that grey sucks.

Unfortunately for us lawyers, most people assume that the law is black and white… that there are simple yes and no answers to legal questions. But there rarely are. Lawyers are paid big bucks to always find a counterpoint to every point raised by their opponent — and counterpoints usually exist. To make matters worse, sometimes legality and reality diverge. Even if you find yourself on the right side of one of those rare black and white legal situations, it may not matter unless you’re willing to pay a lawyer to enforce your rights, or defend you, in court. Proving you’re right, even when it’s painfully obvious that the law is on your side, can be an expensive endeavor, especially if the party on the other side has money and a bad attitude.

In your situation, not only is the law greyer than my prematurely greying hair, but the risks of reality factor heavily into the equation. The easiest, least risky way to answer your question would be to tell you that you cannot use any of your footage that contains any music playing in the background without getting permission from the copyright owner(s) of that music. One of the central tenets of copyright law is that you cannot copy and distribute someone else’s work. By recording that live performance of copyrighted music and distributing it within your movie, you’d be copying and distributing that music and thus need the permission of the copyright owner to do so.

If the law were that easy, however, the profession wouldn’t be filled with so many geniuses(and we probably wouldn’t have been blessed with so many good documentaries). Most people in the biz know of the concept of “fair use” under copyright law but don’t fully understand it. Fair use is what’s known as an “affirmative defense,” meaning that while you may be guilty of copyright infringement under the letter of the law, you may nonetheless be able to avoid liability if you fall under its protections.

Whether an infringement qualifies for a fair use defense is determined by weighing the following four factors:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes

2. The nature of the copyrighted work

3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole

4. The effect of the use upon the potential market for, or value of, the copyrighted work

Sounds simple enough. What say you, official U.S. Copyright Office website?

“The distinction between fair use and infringement may be unclear and not easily defined.”

Uh… thanks guys! I guess that’s what happens when you have numerous courts filled with different personalities trying to make sense of ambiguous statutory direction.

Because it’s difficult to bring much clarity to your situation without going through a factually-intensive detailed analysis, I’m going to avoid delving into the application of fair use to your question. The truth of the matter is that it’s never going to be absolutely clear whether what you’re doing will constitute fair use. In addition, even if 9 out of 10 attorneys agree that your use would constitute fair use, you have to strongly consider the risk that you may get sued anyway if you upset the wrong copyright owner, and, because it’s a grey area of the law, it’s going to be very expensive to defend yourself. Would you really call it a victory if you spend 4x your production budget to defend yourself? That’s why many filmmakers often try their damndest to clear everything even if it may not be absolutely necessary under the law (see ourprevious post on this phenomena).

Unfortunately, not every documentarian is rolling in dough like Banksy is (from my experience, I believe “disheveled” is the more apt description of your average documentarian). If you can’t afford to be ultra-safe and clear everything, the key is knowing where there are risks and trying to minimize them if you can do so without compromising your realism.

Some general tips:

– If you’re pulling someone from a crowd to interview them, you can’t necessarily control your surroundings. If, on the other hand, you’re having them meet you for an interview, you should conduct that interview somewhere devoid of music in the background, or any posters, artwork, or running televisions for that matter. When the environment is under your control, avoid filming copyrighted works.

– If you’re filming at the live event, you’re not going to be able to avoid capturing music. What you can avoid, however, is capturing too much. Don’t film a scene that’s going to capture a song in its entirety. The less of any particular song captured, the better.

– When you’re editing for sound, make sure the music is background, ambient sound, not at all a focus of the scene. You certainly can’t use the live music as a substitute for your soundtrack.

– You shouldn’t focus on any of the bands performing on stage, unless you’re prepared to get clearance. Not only does that make the music more prominent which can get you in trouble for copyright purposes, but that also gets you into the realm of rights of publicity, privacy, defamation, etc. because you’re focusing on the individuals performing. For that matter, you should avoid focusing on any particular individuals in the crowd. If you are going to focus on someone (whether in an interview or as the main element of a scene), you should have that person sign a release.

As a documentarian, you’re probably going to have to live with some risk. As long as you’re taking risk-minimizing steps like those above, you’ll hopefully avoid upsetting copyright owners and, even if you do, you’ll have laid a strong enough foundation for a fair use defense to hopefully ward off any attacks.