Can a documentary use clips and photos under fair use?

Documentaries borrow more than any other kind of production: news broadcasts, home video, photographs, scenes from other films, posts and songs. Our page on production legal and clearance for film and TV describes the whole clearance process and why an errors and omissions insurer reads it closely. This page covers one part of it, the decision to use third-party material without a license, and what the statute, the Supreme Court and the Copyright Office actually say about that decision.

How a fair use decision is made, clip by clip

1. Log every borrowed element during the edit. Record the timecode, the length, where it came from, who appears to own it, and what it shows. A clip you cannot trace to an owner still needs a decision.
2. Remove the easy cases first. Material whose copyright has expired is free to use; see our page on when old film footage is in the public domain. Works prepared by federal employees as part of their official duties are not protected at all (17 U.S.C. 105). Anything you have licensed is governed by the license, not fair use.
3. Write one sentence on purpose for each remaining use. Say what the film does with the clip: criticizes it, comments on it, reports a news event through it, or uses it as evidence of what happened. Section 107 names "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as examples.
4. Weigh the four factors. The purpose and character of the use, the nature of the work, the amount used, and the effect on the market for the work (17 U.S.C. 107).
5. Test the purpose against Warhol. Ask whether your use serves the same purpose as the original and whether it is commercial. If both are true, you need some other justification, such as commentary that targets the original.
6. Check comparable decisions. The Copyright Office's Fair Use Index summarizes court decisions by category and type of use, with the facts, the question and the result. It was last updated July 2026 and does not include every opinion.
7. Get the written analysis done before picture lock. At lock, a weak use can still be trimmed or replaced cheaply. After delivery, the same fix means a re-edit and new masters.
8. License, trim, replace or cut what fails. The Copyright Office's own advice is that "in cases of doubt," permission should be obtained.

How do the four factors apply to documentary footage?

No factor decides the case alone, and courts weigh them together on the facts. The Copyright Office's summary of the factors is the clearest plain-language guide, and the right-hand column turns each one into the question an editor can answer.

Factor four matters more for documentaries than many producers expect, because archive footage and photographs are licensed every day. If your use looks like the kind of use those owners are paid for, it competes with their licensing market. Our article on five ways to legally use copyrighted works sets fair use next to licensing, the public domain and Creative Commons, which are often the cleaner route.

What did the Warhol decision change for documentaries?

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, No. 21-869 (May 18, 2023), the Supreme Court considered only the first factor, applied to one use: the 2016 licensing of a Warhol image based on a photograph of Prince for a magazine cover. Both images were portraits of Prince used to illustrate stories about Prince, and the use was commercial. The Court held that the first factor favored the photographer.

The key sentence is this: "If an original work and a secondary use share the same or highly similar purposes, and the secondary use is of a commercial nature, the first factor is likely to weigh against fair use, absent some other justification for copying." The Court also stressed that the analysis follows the specific use: "The same copying may be fair when used for one purpose but not another." It expressly gave no opinion on the creation, display or sale of the original Warhol works.

For a documentary, that shifts the question from "did we add something new?" to "what are we using this for?" Under the Court's reasoning, new expression such as editing, music or narration around a photo is relevant but not, without more, enough to change its purpose. Commentary or criticism that targets the original, the Court said, may have a compelling reason to borrow from it. A news photo shown so the film can question how the event was reported has a different purpose from the same photo shown simply to depict the event, which is what the photographer licenses it for.

Does a credit, a disclaimer or a few seconds make it fair use?

No. The Copyright Office says there are "no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work," and its Fair Use Index adds that there is no formula for a safe amount. A three-second clip can still take the heart of a work, and courts have sometimes found even the use of an entire work fair. The four factors are the test, and none of them asks whether you named the owner in the credits.

Clips also carry other people's rights inside them. A news broadcast may contain a song, and an old clip may contain a recording made before 1972. Those recordings now have federal protection, and section 1401(f) applies fair use to them as it does to other works; our page on protection for pre-1972 sound recordings explains the schedule. Music you add yourself is a licensing matter, and our article on mistakes film productions make when licensing music covers the usual traps.

Authors face the same no-formula rule for text; our page on quoting song lyrics or other books in your book applies it to publishing.

What changes the answer

• The target of the commentary. Commentary on the borrowed material itself gives the strongest reason to copy it. Under Warhol, borrowing to make a point about something else needs more justification (Warhol opinion).
• Commercial distribution. A streaming or theatrical release is commercial. That is weighed against the degree of difference in purpose; it is "relevant, but not dispositive," in the words of the decision's syllabus.
• Unpublished material. Private home video or unreleased footage weighs against fair use, though section 107 says unpublished status "shall not itself bar a finding of fair use."
• Factual versus creative sources. News and documentary footage sit closer to the factual end; feature films, music and art photography sit at the creative end (Copyright Office Fair Use Index).
• Who made the footage. Federal government work is free of copyright, but section 105 lets the government hold copyrights transferred to it, and footage of state or local agencies is not covered.
• Trademarks and people in the frame. Fair use answers only the copyright question. Logos, products and artwork raise their own issues; see our page on whether brands, logos or artwork can appear on screen.
• The stakes if you are wrong. If the work was registered in time (17 U.S.C. 412), a court may award statutory damages of $750 to $30,000 per work, up to $150,000 if the infringement was willful (17 U.S.C. 504(c)). Our page on copyright infringement damages explains how those figures work.

A worked example

Common mistakes

• Treating "documentary" as a category that is always fair. Section 107 asks about each use, and so does Warhol.
• Using photos as wallpaper. Portraits and event photos used only to show their subject are the closest documentary parallel to the use the Court rejected in Warhol.
• Relying on a credit or a "no infringement intended" card. None of the four factors turns on attribution.
• Leaving the analysis until after lock. Replacing a clip in the edit costs little; replacing it after delivery means re-editing and new deliverables.
• Ignoring what is inside the clip. Music, art and recordings inside borrowed footage each need their own answer.
• Losing the paperwork. The fair use memo belongs in the clearance file with your licenses; our guide to a clean film chain of title explains what a distributor expects to see.

What to do this week

1. Export a list of every third-party clip, photo and song in the current cut, with timecodes and sources.
2. Write a one-sentence purpose for each item and flag any that only illustrate their subject.
3. Search the Fair Use Index by category for decisions closest to your strongest and weakest uses.
4. Send license requests now for the uses that fail, so replacements can be cut in before lock.
5. Ask your E&O broker what the underwriter wants to see for fair use material and when.
6. Plan to register the finished film; our page on registering a film or screenplay with the Copyright Office explains the filing.

Frequently asked questions

Is a nonprofit or educational documentary automatically fair use?

No. Nonprofit educational purpose is part of the first factor and courts are more likely to find such uses fair, but the Copyright Office notes that not all nonprofit or noncommercial uses are fair. The other three factors still apply, and a film that later sells to a commercial outlet changes the picture.

Can the Copyright Office tell me whether my use is fair?

No. The Office says it cannot give specific legal advice on fair use to members of the public, citing 37 C.F.R. 201.2(a)(3). Its Fair Use Index is a research tool, and courts decide the question.

If I asked for a license and was refused, can I still rely on fair use?

Fair use is decided by the four statutory factors, not by whether you asked first. Keep the correspondence, though, because it will be part of the record an insurer or a court sees.

Does fair use protect the film when it is shown in other countries?

Fair use is a U.S. rule. The Copyright Office notes that every nation applies its own copyright law to uses within its borders, so a film with international sales may need licenses for uses that are fair in the United States.

What happens if an owner objects after release?

Usually a demand letter comes first; our page on what to do after a copyright infringement letter walks through the response. If it becomes a lawsuit, fair use is raised as a defense in federal court, which our page on copyright lawsuits in Atlanta federal court describes.

Can I use clips I found on a video platform?

Where you found a clip says nothing about who owns it or whether it is licensed. Treat it like any other third-party footage: trace the owner, then license it or run the four factors.

Do interviews I filmed myself raise fair use questions?

Not copyright fair use, because the footage is yours, but you still need appearance releases and, if crew shot it, agreements that give the production the rights. Our page on whether a production owns what its crew creates covers those agreements.

Zala IP Law advises documentary producers and production companies on clearance, fair use analysis and licensing, and Shreepal J. Zala practices federal intellectual property and entertainment law nationally. If your film is heading toward picture lock with borrowed material in it, request a consultation or call 404-313-1701 while changes are still inexpensive.