Fair use has existed as a court-created concept since the 1800s, and has been in the U.S. Copyright Act since 1978. However, the four nonexclusive factors listed in the Act can be hard to understand, and challenging to apply in specific cases.
In their article “Fairly Simple,” featured on the cover of the Entertainment issue of Los Angeles Lawyer, Partners Michael Donaldson and Lisa Callif propose a simple three-question test to gauge whether something is fair use in a nonfiction context: “Does the asset illustrate or support a point that the creator is trying to make in the new work? Does the creator of the new work use only as much of the asset as is reasonably appropriate to illustrate or support the point being made? Is the connection between the point being made and the asset being used to illustrate or support the point clear to the average viewer?”
While the regular tests are still relevant in evaluating fair use, the simple three-question test may also be applied in the context of nonfiction films to predict whether the use of copyright-protected materials falls within the doctrine of fair use, regardless of whether a film is scripted or unscripted.