“Fair Use Makes Documentaries Possible:” News from Tribeca Film Festival 2016

At the Tribeca Film Festival, many documentaries actively employed fair use—another marker of the fact that fair use has become a basic feature of industry practice. Fair use made Memories of a Penitent Heart possible, in the way that it emerged at the festival.

Director Cecilia Aldorondo wanted to discover and tell the story of her mysterious uncle, who died of AIDS in the late 1980s. Peeling back the onion, she found layers of trauma. Her uncle had hidden his sexual practices and partner from his family; his family ejected his loving partner from his dying days; her beloved grandmother was the dragon-guardian of his final moments, in which she demanded that he repent to save his soul. The story she tells has universal themes but is also rooted profoundly in the moment.

As she struggled to tell this story, she became enmeshed in the realities of many memoirists: Our memories are entwined with our media. She found herself again and again referring to popular films and songs. How to tell this story on the shoestring budget of an independent filmmaker?

“I was familiar with the Documentary Filmmakers’ Statement of Best Practices in Fair Use,” she said, “and I shared it with my editor.” Her editor, Hannah Buck, embraced the document. “How did we use fair use? How didn’t we use it?” she said.

Popular films and movies.

The film incorporates references both to popular films—including Brokeback Mountain, Meet Me in St. Louis, and West Side Story—and to popular music, as well as to texts. The filmmakers were confident that their use was transformative, that is, reusing the material for a different purpose. And they carefully aligned the amount they used with their purpose.

Why was fair use so important to Aldorando? “It’s important to make the movie I want to make,” she said. “I come from a visual arts background. I want to use visuals to tell my story. I’m making a film about memory, so much of what I’m making has to do with pre-existing material.” Without knowledge of fair use, she said, “We could have gotten scared off and not done it.”

Memories of a Penitent Heart will be available, after its festival run, on POV, a public TV series on Monday nights. It was funded by the Independent Television Service (ITVS), part of the Corporation for Public Broadcasting.