I would say it is arguable that is fair use, but the whole thing about fair use is that it is a defense, not a type of license or something you can preemptively apply. So whether or not it will be protected under fair use is actually not determined yet. In fact I would say that’s the entire debate here, right?

I have worked on many documentaries and any time we said “fair use” internally what we were implicitly saying is “nobody will come after us because they know that we are probably safe under fair use if this escalated.“ But again, we could never preemptively apply it. We were just anticipating potential conflict and gauging how likely it was to occur.