The Hidden Costs of Documentaries

The most dangerous hidden cost for a low budget documentary is that of legal fees. Legal fees have to potential to double or even triple the cost of a low documentary. A director can still face hundreds of thousands of dollars of legal fees under the copyright laws "fair use" doctrine. The "fair use" doctrine is aimed at protecting artists' First Amendment rights. In theory the "fair use" allows authors to reference and build upon someone elses work without facing legal liability(Hennefeld, 4). there are four things to consider before determining if a something falls under the description of the "fair use" doctrine.
1) Is the purpose for commercial use or nonprofit education
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.
These four stipulations create a catch-22. They allow artists' to build on others work but the legal cost of determining if the artistic work falls under the terms of "fair use" is beyond the budget of low budget documentaries. The cost to determine if the artistic work falls under the"fair use" doctrine can be hundreds of thousands of dollars and if the claim loses the director can face up to $150,000 id damages for each copyright infringement. Due to the outrages cost of determining if an artistic work falls under the "fair use" and the fear of losing a claim, many directors are forced to give up their dreams and abandon their documentaries.

To avoid using the "fair use" doctrine a director has to clear all the material in the documentary that is not his own work. This is a very expensive process that can drastically increase the cost of the documentary. A good example of this is with Jonathan Caouette's "Tarnation." This was originally edited at home on the young man's laptop for around $218. After a distributor picked up "Tarnation" and improved the quality, cleared music rights, and the cost for post-production the cost came to $460,00. Half of this cost was clearing the rights. $230,000 where spend on one film to to clear the rights this is far more than the budget that is given to most documentaries.

These are just some of the legal fees that any filmmaker has to face. These fees can make or break a low budget documentary.

http://www.nytimes.com/2005/10/16/movies/16rams.html?_r=1
Hennefeld, Margaret. Fair Use in Independent Documentary Filmmaking. CUREJ - Undergraduate Research electronic Journal. University of Pennsylvania, 2006.
repository.upenn.edu/cgi/viewcontent.cgi?article=1032&context=curej