Fair use is not a get-out-of-jail-free card. Financers and their lawyers will be loath to touch anything which does not have a clear rights status, and the concept of fair use is murky and can only be proven once a judge has ruled as such, so most companies will just not take the risk.
For a real-life example posted here recently, a scholar on Shel Silverstein's work was forbidden by his estate to quote anything of his. [0]
> it forbade me not only from reproducing images for this one article, but from ever reproducing any of Silverstein’s work—song lyrics, poems, images, whatever—in any context. Ever.
This is what he had to say on how fair use played into the situation:
> You may have heard of something called “fair use.” One would think fair use was custom built to protect scholars and artists who want or need to reproduce excerpts from copyrighted work in the service of education or art or scholarship—and one would be right. But whether we’re protected or not, most presses prefer to play it safe and make scholars request permission.
These institutions that preserve films also have donors and institutions they are beholden to for funding. Claiming fair use won't protect you from a massive and costly court case from a Hollywood juggernaut's top lawyers. Film studios especially have an incentive to litigate against work like this because a lot of their back catalog has become relevant and profitable to re-release since people have gotten into classic films and the associated works.
For a real-life example posted here recently, a scholar on Shel Silverstein's work was forbidden by his estate to quote anything of his. [0]
> it forbade me not only from reproducing images for this one article, but from ever reproducing any of Silverstein’s work—song lyrics, poems, images, whatever—in any context. Ever.
This is what he had to say on how fair use played into the situation:
> You may have heard of something called “fair use.” One would think fair use was custom built to protect scholars and artists who want or need to reproduce excerpts from copyrighted work in the service of education or art or scholarship—and one would be right. But whether we’re protected or not, most presses prefer to play it safe and make scholars request permission.
These institutions that preserve films also have donors and institutions they are beholden to for funding. Claiming fair use won't protect you from a massive and costly court case from a Hollywood juggernaut's top lawyers. Film studios especially have an incentive to litigate against work like this because a lot of their back catalog has become relevant and profitable to re-release since people have gotten into classic films and the associated works.
[0]: http://www.slate.com/articles/arts/books/2013/10/my_shel_sil...