How Canadian courts approach the use of clips and excerpts in documentaries, and the practical steps that make a fair dealing position stronger before release.
Documentaries are built from other people’s work. Clips, stills, songs and archival footage are often the subject of the film and the evidence for its argument. Canadian copyright law recognizes that, but it does not give filmmakers a blank cheque.
Fair dealing is a user’s right
The Supreme Court of Canada has described fair dealing as a user’s right, not a loophole, and has said it should be given a large and liberal interpretation. The Copyright Act allows fair dealing for enumerated purposes that include research, private study, education, parody, satire, criticism, review and news reporting. For criticism, review and news reporting, the Act also requires that the source, and the author where given, be mentioned.
The analysis has two stages. First, is the dealing for an allowable purpose? Second, is it fair? Courts assess fairness using the factors set out in CCH Canadian Ltd. v. Law Society of Upper Canada: the purpose, character and amount of the dealing, the alternatives available, the nature of the work, and the effect of the dealing on the work.
What the courts have looked at
In Wiseau Studio, LLC v. Harper, 2020 ONSC 2504, the Ontario Superior Court of Justice considered a documentary about the film The Room that used several minutes of clips from it. The court accepted that the clips taken together were a substantial part of the film, but found the use was fair dealing for the purposes of criticism, review and news reporting. The decision is frequently cited on how fair dealing applies to documentary filmmaking.
The reasoning points to several practical questions:
- Is the clip doing work in the film? Material that is analysed, discussed or used to illustrate a point is easier to defend than material used as entertainment or filler.
- Is the amount proportionate? Taking what the argument needs, and no more, matters.
- Is the source acknowledged? For criticism, review and news reporting, attribution is a statutory condition.
- Does the film substitute for the original? A documentary that sends viewers to the original is in a different position from one that replaces it.
Practical steps before release
Fair dealing is assessed on the facts, so the record a production keeps matters. Filmmakers and their counsel should consider:
- Keeping a log of each third-party clip, why it was used and how long it runs.
- Reviewing the edit with the fairness factors in mind, before picture lock where possible.
- Ensuring on-screen or credit attribution meets the statutory requirement.
- Speaking with the errors and omissions insurer early about the fair dealing position.
- Preparing for the possibility of an injunction motion close to release.
Fair dealing is a defence that can succeed, but it is decided case by case. Early analysis is far cheaper than a dispute on the eve of a premiere.
This article is general information about Ontario and Canadian law as of its date. It is not legal advice.