Copyright infringement and fair use quesitons

[MithrilFox]

Questions for some people with practical experience, or know someone who has practical experience.

I want to start producing some internet "shows" (if I can call them that), but I worry a lot about the copyrights to material, brand names, and people's names.

The Fair Use clause seems great, but I hear that it doesn't really matter if you get sued, because it can't stop a lawsuit.

For example, is using a MIDI version of a song in a video that is not sold copyright infringement that cannot be "Fair Use?" How about showing video of video games, someone watching a small part of a movie (few seconds), hearing a commercially sold song playing in the background of a store or home on the video, or the display of brand names?

Anyone have some concrete help for these worries?

[Eugenia Loli-Queru]

Regarding music, read here:
http://eugenia.gnomefiles.org/2007/09/06/creative-commons-licensed-music-for-videographers/

As for fair use, it can only be used if it's journalism, parody, education, and a few more clauses. For example, if you are making a review of a game or a movie, it's fair use to use a few seconds that do NOT degrade the value of the movie (e.g. if you don't show the end of the movie). But if it's "fan stuff", then no, it's not fair use and you need a license. Even if you want to make a walkthrough of a video game is not fair use, because you degrade the ability of the game company to sell their own walkthroughs.

Additionally, if you are going to upload your videos on a site like youtube that has ads, then this is commercial usage, even if you don't make a penny.

While there is quite some relaxation in these laws for non-profit videos, the truth is that if you take the copyright law by letter, it does not allow for much individual freedom and "fan videos". There is nothing stopping companies from suing you, and in fact, exactly because of this "common sense" clause that exists about fair use, it will be up to the judge to decide your fate. There is absolutely no guarantee that you can win this over previous case results.

[Mal]

I suggest you read this:
http://www.centerforsocialmedia.org/resources/fair_use/

this:
http://www.b12partners.net/mt/archives/2005/06/10-big-myths-ab.html

this:
http://www.smashingmagazine.com/2007/07/07/copyright-explained-i-may-copy-it-right/


but ESPECIALLY this (as it's easier to digest - in a comic format):

http://www.law.duke.edu/cspd/comics/zoomcomic.html
direct link to the PDF version:
http://www.law.duke.edu/cspd/comics/pdf/cspdcomichigh.pdf

[PTravel]

The Fair Use clause seems great, but I hear that it
doesn't really matter if you get sued, because it can't stop a lawsuit. Fair use is a fact-specific, equitable defense to infringement, meaning whether or not it will apply is determined by the judge in the context of litigation.


For example, is using a MIDI version of a song in a video that is not sold copyright infringement that cannot be "Fair Use?"It may or may not. The fact that it's MIDI or no sold is irrelevant to infringement.


How about showing video of video games, someone watching a small part of a movie (few seconds), hearing a commercially sold song playing in the background of a store or home on the video,All three scenarios constitute copyright infringement if used without permission.


or the display of brand names? Brand names are protected by trademark, not copyright, which is a completely different right with completely different concerns. You can use someone's trademark without incurring liability if (1) it doesn't result in consumer confusion as to source, sponsorship or affiliation, i.e. people won't think the trademark owner is the source, sponsor or affiliate of the film or video, (2) it doesn't result in dilution of the source identifying character of the trademark, i.e. people won't be less inclined to associate the trademark with the goods and services of the mark owner because of its inclusion in the film or video, and (3) it doesn't tarnish the trademark, i.e. it doesn't associate the mark with something unsavory or disreputable.


Anyone have some concrete help for these worries?Yes. If you're going to do a project that has any chance of public exposure, consult an attorney before you finalize your script. Otherwise, you proceed at your own risk. Intellectual property law is arcane, complex and filled with niche doctrines. It's dangerous territory for lay persons to navigate on their own.

[MithrilFox]

Thanks for the informative links. The link to the Center for Social Media was extremely useful, and I loved reading the Statement of Best Practices. I am familiar with the concept of drafting a "best practices" paper, because we spoke heavily about it in my foreign language teaching methods course in university.

I have found exactly what I expected to find, with a few quirks. Basically, there seem to be two types of people in the world when it comes to copyright beliefs: too cautious, and too careless.

I had a friend who graduated with a major and minor in broadcast media (though not specifically in film), and was surprised when he told me that a videographer needs to "get permission from everybody who can be seen in the shot." Seemed excessive and silly to me, since filming out in public is done all the time, and I've seen news cameras hit me with nobody coming at me with a paper to sign. Then I read the Statement of Best Practices, and it fell into place a lot better.

It seems that there is a great deal of flexibility in the Fair Use clause, but also a great deal of abuse of the Fair Use clause by many who don't know what it is, and think that simply saying "it's fair use" validates almost anything.

So, I got this so far, that seems to be consistent with fair use practices:

A) Using a whole, copyrighted song at the end of your video without permission is just plain infringement. It serves the same purpose it was originally intended to, is not "transformed" into anything else critically, it contains the entirety of the product, and there is no higher benefit or purpose.

B) But... quoting a part of the song's lyrics in the context of a social critique of how Japanese society views Korean people would be acceptable, as long as it is no more than is necessary to drive home the point, and as long as it serves the purpose of relaying the point that the documentary is aiming for. Use of the actual song itself seems questionable, and is best kept to an absolute minimum, if it is used at all.

A) Playing part of a copyrighted movie in your video because you think it's "cool," and are recommending it to friends, is infringement. The movie is serving the same exact purpose it was intended to, and no valuable critique or commentary is provided.

B) But... using a small (as small as possible) clip of the movie in order to emphasize how Hollywood views the issue of women and beauty within your documentary is probably acceptable, as long as appropriate critique is offered, or as long as it clearly matches the purpose of the documentary (and is kept to as little as is necessary to make the point). If the "documentary" is merely an attempt by the creator to showcase "beautiful" women and provides no substantive commentary on a social issue, it will almost undoubtedly be infringement. Perhaps a still-frame of the movie would be even safer?

A) Incidental capture of trademarks, copyrighted visual and audio material, and other copyrighted works would be infringement if it is kept in the view of the frame for any extended length of time without sufficient reason (for example, you must film at that spot to get your target). For example, filming your friend talking about baseball while Titanic is playing within plain site on a TV beside him is highly questionable... As a documentary, social commentary, or parody, why would you want that extraneous material for an extended period of time? There is no justification for not making the effort to avoid it.

B) But... if a couple of high school boys that you are following around for a "day in the life of" documentary are listening to a song in the car, there is no need to seek permission as long as something else is prevalent at the time. Continuing to carry that background song into other clips without connection is questionable, but the mere incidental capture of it requires no permissions, though it is safest to break up that footage so that you use only what is necessary, and as little of the song comes in as possible. If the song plays from beginning to end, it's more difficult.

What do you (informed) experienced copyright handling-peoples think about my assertions so far? Am I getting the general idea for the use of copyrighted material within the Fair Use clause?

One area where I have a lot of question is the "parody" aspect. Parodies are intended primarily to be entertainment (most of the time), while social critique or commentary is secondary. This makes it difficult for me to figure how using copyrighted material created for entertainment, within your primarily entertainment-based creation is "Fair Use?"

[PTravel]

You got most of it right. However . . .


A) Incidental capture of trademarks, copyrighted visual and audio material, and other copyrighted works would be infringement if it is kept in the view of the frame for any extended length of time without sufficient reason (for example, you must film at that spot to get your target).

Copyright and trademark are two completely different rights that protect two completely different interests.

Incidental reproduction with respect to copyright is an open question at the moment. The last time I looked, there were only two reported decisions at the district court level and no appellate decisions. The decisions were also somewhat contradictory. However, as a general guideline, absent a statutory exception, incidental reproduction of copyright protected material constitutes infringement.

Trademark presents an entirely different situation. Use of another's trademark is prohibited in three contexts:

1. When a likelihood of consumer confusion as to source, sponsorship or affiliation would result.

2. When use of the trademark would dilute its source-identifying character (dilution by blurring).

or

3. When use of the trademark would bring it into disrepute (dilution by tarnishment)

If neither of the three factors are present, there is no constraint on using someone else's trademark. If any of the three are present, it doesn't matter whether the use of the mark is incidental or specific: it still would constitute infringement or dilution.

Remember, too, that a logo may be protected both as trademark and copyright.


For example, filming your friend talking about baseball while Titanic is playing within plain site on a TV beside him is highly questionable... This implicates copyright, not trademark.


B) But... if a couple of high school boys that you are following around for a "day in the life of" documentary are listening to a song in the car, there is no need to seek permission as long as something else is prevalent at the time.That is not correct. Copyright incidental reproduction doctrine has been applied as a defense to news media inclusion of music in the context of a news report when less than the whole song has been used (in one, single district court case). There is no "prevelance" test. There may be a fair use defense (use is transformative, doesn't hurt the market for the original, etc.), but that's far from clear.

Incidental reproduction doctrine is a veritable minefield, and one that should be avoided unless you're prepared to invest a few hundred thousand dollars in legal fees so that you can help define its limits.


Continuing to carry that background song into other clips without connection is questionable,It's not questionable. It's infringement -- that's pretty clear. This question comes up a lot in the context of wedding videography. I always suggest to wedding videographers who want to capture the bride's first dance that, if they want to minimize their liability exposure, they avoid J- or L-cuts in this context.


but the mere incidental capture of it requires no permissions,Sorry, but that's incorrect. If you're a news reporter, you're on safer ground. If you're a documentary film producer, it is not, in the least, clear and, if you're going to distribute your film, I'd recommend you contact a clip-clearance company and obtain the necessary rights.


What do you (informed) experienced copyright handling-peoples think about my assertions so far? Am I getting the general idea for the use of copyrighted material within the Fair Use clause?Yes and no (though mostly yes). Fair use doctrine is very fact specific -- the judge will determine whether fair use applies on a case-by-case basis. The only way to reliably predict whether fair use will apply is to be completely familiar with the entire corpus of fair use decisional law AND the jurisprudential theories that underlie (fair use finds its basis in the First Amendment). The four statutory fair use factors are merely guidelines that will help frame the judge's decision, but none are dispositive, either individually or in combination.


One area where I have a lot of question is the "parody" aspect. Parodies are intended primarily to be entertainment (most of the time), while social critique or commentary is secondary.That is not correct. Parody comes within fair use precisely because it constitutes commentary and critique. Parody has a number of associated niche doctrines that are not obvious nor necessarily logical. These include the requirement that the work which is copied be the subject of the parody, and that the parody "borrow" no more of the original than is necessary to "conjure it up" (yes, this is referred to in the case law as the "conjure up test" -- see Walt Disney v. The Air Pirates). There is also a judicial gloss (a non-articulated judge-made rule) applicable to all fair use decisions that entails a judge's determination of the relative "morality" of the copy -- "dirty," or "immoral" (in the judge's opinion) parodies are less likely to be found a fair use than other works.


This makes it difficult for me to figure how using copyrighted material created for entertainment, within your primarily entertainment-based creation is "Fair Use?"As I think I said in my earlier post, these kind of determinations can not readily be made by non-lawyers. If you're considering any kind of public exposure of your work, you would do well to consult counsel. If you're a student or non-profit, you shouldn't have too much trouble finding a lawyer who could advise you pro bono, i.e. for free.

[MithrilFox]

I've certainly seen a high level of contradiction among different groups that speak about the nature of copyright law and fair use. In fact, it was interesting to visit the FourDocs website, a place for amateur documentarians to post their productions. The copyright law video (explaining all the rules) was extremely strict and overly cautious, saying that ABSOLUTELY EVERYTHING must be cleared (minus people who simply walk by on the street while you're shooting). Yet the Statement of Best Practices contradicts this.

I have some comfort from the list of court cases dealing with copyright infringement/fair use, as they conform to the Statement, but I wonder how many cases were not labeled as being about "fair use," and thus weren't included in the list at the Center for Social Media (www.centerforsocialmedia.org).

Seems like we definitely need some clearer guidance on the issue, as telling people that you have the right of "fair use," and that this right falls under the right of free speech, is a bit misleading when a judge will [in some manner] arbitrarily decide based on several vague factors.

Also, the example about the boys listening to music in the car seems contradictory to the Statement of Best Practices #3, if it is indeed obvious infringement. It also seems contrary to common sense; being forced to alter reality to avoid material that is part of everyday life seems entirely unnecessary, since it cannot serve to replace the original material (who would use a documentary's captured part of a song playing in the background covered by foreground noise as a substitute for the song itself?)

Seems a lawyer is just another guy with an informed opinion, who may or may not be able to provide better advice than the next guy. I suppose the only truly qualified individual is a lawyer who is an expert in copyright law, who has extensive experience with the Fair Use clause in court. But from what I understand, they really aren't that common, since Fair Use has rarely been challenged in court.

[PTravel]

I've certainly seen a high level of contradiction among different groups that speak about the nature of copyright law and fair use. In fact, it was interesting to visit the FourDocs website, a place for amateur documentarians to post their productions. The copyright law video (explaining all the rules) was extremely strict and overly cautious, saying that ABSOLUTELY EVERYTHING must be cleared (minus people who simply walk by on the street while you're shooting). Yet the Statement of Best Practices contradicts this.

I have some comfort from the list of court cases dealing with copyright infringement/fair use, as they conform to the Statement, but I wonder how many cases were not labeled as being about "fair use," and thus weren't included in the list at the Center for Social Media (www.centerforsocialmedia.org).

Seems like we definitely need some clearer guidance on the issue, as telling people that you have the right of "fair use," and that this right falls under the right of free speech, is a bit misleading when a judge will [in some manner] arbitrarily decide based on several vague factors.

Also, the example about the boys listening to music in the car seems contradictory to the Statement of Best Practices #3, if it is indeed obvious infringement. It also seems contrary to common sense; being forced to alter reality to avoid material that is part of everyday life seems entirely unnecessary, since it cannot serve to replace the original material (who would use a documentary's captured part of a song playing in the background covered by foreground noise as a substitute for the song itself?)

Seems a lawyer is just another guy with an informed opinion, who may or may not be able to provide better advice than the next guy. I suppose the only truly qualified individual is a lawyer who is an expert in copyright law, who has extensive experience with the Fair Use clause in court. But from what I understand, they really aren't that common, since Fair Use has rarely been challenged in court.I don't what else to tell you, other than what I've already explained in this thread. I'm an intellectual property attorney -- this stuff is my bread-and-butter. I don't provide legal advice to anyone on HV20.com (I can't, as no one here is a client). However, I've explained the general principles of the law as best as I can.

[Mal]

Like many have said in this thread; there's two MAIN things to remember:

1) the laws that govern this are very complex, and

2) By NOT getting proper clearances and permissions you are for sure 100% setting yourself up to potential problems; i.e. even just because you may win a litigation under fair use - hypothetically speaking - can you even afford that litigation?

I always say:
It's fairly easy to get proper permissions, and work a project to satisfy all legal issues in regards to copyright, etc. But it takes a some homework, and some time; which unfortunately many do not seem to want to put in; or feel they are not required to do.

The info put out by the Center for Social Media I'd describe more as "wishful thinking" or a guide....it's by no means a law book.

[Mal]

Keep in mind also how the M. Moore's work: they have a camera guy, two sound guys, a producer, and 15 lawyers.

Not really, but you get the point.

[MithrilFox]

I don't what else to tell you, other than what I've already explained in this thread. I'm an intellectual property attorney -- this stuff is my bread-and-butter. I don't provide legal advice to anyone on HV20.com (I can't, as no one here is a client). However, I've explained the general principles of the law as best as I can.

I don't mean to undermine your advice or expertise. What I am saying is that it seems that NO ONE is able to provide assurance of anything. The law obviously needs to be clarified, or else it is pointless to give people a "right," and yet leave the details of that right so vague as to open up those who try to exercise it to painful litigation (for breaking the law).

Sounds like the law makers want to have their cake and eat it too. Honestly, what good is the fair use clause if it provides no assurance? How many of us can risk diving in and hoping that the bottom is deep enough to avoid hitting our head and breaking our spine?

Either tell us how deep the water is, or we shouldn't even be allowed to dive.

[PTravel]

I don't mean to undermine your advice or expertise. What I am saying is that it seems that NO ONE is able to provide assurance of anything. The law obviously needs to be clarified, or else it is pointless to give people a "right," and yet leave the details of that right so vague as to open up those who try to exercise it to painful litigation (for breaking the law). It's not true that no one can provide assurance of anything. A lawyer can do this. Intellectual property law and related areas like right of publicity are complex and not something that the average person, even a reasonably well-educated person, will understand. Take my advice: if you're a student, non-profit or low-budget film maker, call your local bar association and ask for a referral.


Sounds like the law makers want to have their cake and eat it too. Hunh? I'm a lawyer -- I don't make the law, I just apply it on behalf of my clients.


Honestly, what good is the fair use clause if it provides no assurance? How many of us can risk diving in and hoping that the bottom is deep enough to avoid hitting our head and breaking our spine? The purpose of the fair use clause is to reconcile the absolute monopoly on protected expression conferred by Article I, Section 8 of the Constitution with the prohibition against government restriction of speech contained in the First Amendment. It's purpose is not provide a loophole for those who don't recognize ownership of works of authorship. It also has absolutely nothing to do with right of publicity and commercial appropriation of likeness.


Either tell us how deep the water is, or we shouldn't even be allowed to dive.Do you perform your own yearly physicals? Interpret your own x-rays? Take out your own appendix? Or do you think it's wiser to let a doctor tellyou how deep the water is?

[Bondizzo]

Hi guys, I'm currently making a reality show dvd, and I have this footage http://www.youtube.com/watch?v=69Obzx02Y2Q, as you can hear it was shot in a club and music is playing which we don't have the copyright to but thats the nature of a club, so would this be regarded as fair use ? and would your laws in America apply down here in South Africa ?

[Dodgy Nick]

and would your laws in America apply down here in South Africa ?

South Africa has her own laws! Even so, I believe South Africa is a signatory of the UN's World Intellectual Property Rights Organisation, and as such, IPR's owned by anyone in the world is respected in SA. Hence you can't just make a copy of some software or a music CD produced oversees legally in SA.

You can read some more over here:
http://www.the-edge.org.za/pdf/Intellectual%20property%20Rights.pdf

[Bondizzo]

South Africa has her own laws! Even so, I believe South Africa is a signatory of the UN's World Intellectual Property Rights Organisation, and as such, IPR's owned by anyone in the world is respected in SA. Hence you can't just make a copy of some software or a music CD produced oversees legally in SA.

You can read some more over here:
http://www.the-edge.org.za/pdf/Intellectual%20property%20Rights.pdf

yeah I know we cant make copies of something you don't own the rights too, I was asking if its fair use to have raw footage of a club scene with music you don't own as it was playing in the club at the time

[Dodgy Nick]

yeah I know we cant make copies of something you don't own the rights too, I was asking if its fair use to have raw footage of a club scene with music you don't own as it was playing in the club at the time

It's the same principle, whether you make a blatant copy, use the music in your production (post production), or have the music playing in the background of your production (while filming), they all require a license.

Here's a brief explanation of the licenses you need:
http://www.uniquetracks.com/Issues/July2004.html

[MithrilFox]

Do you perform your own yearly physicals? Interpret your own x-rays? Take out your own appendix? Or do you think it's wiser to let a doctor tellyou how deep the water is?

Touché. I get your point. You've changed my approach and thinking significantly.

However, I still disagree about your conclusions that a "lawyer" can provide assurance. Last I checked, the judge/jury still has the last word:hv20-smilie55:

Unfortunately, I'm not a student. I was once not too long ago, but I'm not anymore. I'm a teacher, but my field has no relation to video work; it's just my hobby. Last time I tried to get "free advice" from a lawyer, he never showed up to the scheduled meeting. :hv20-smilie119:

I guess it's much more alluring when there's payment involved. I know that's true for me!

[PTravel]

Touché. I get your point. You've changed my approach and thinking significantly.

However, I still disagree about your conclusions that a "lawyer" can provide assurance. Last I checked, the judge/jury still has the last word:hv20-smilie55:Well, I'll have to disagree about that, as well. First, it is a lawyer's job to predict whether a specific situation will result in liability and, at minimum, give a risk assessment. That's why they call lawyers, "counselor." I do this all the time for my clients. If I wasn't reasonably good at this, my clients would quickly seek representation elsewhere.

Second, a properly written non-infringement opinion from a lawyer is prima facie evidence of non-intentional infringement, i.e. if the lawyer is wrong you may still be held liable for infringement (copyright infringement is strict liability), but you won't be liable for the seriously-elevated damages that result in intentional infringement.


Unfortunately, I'm not a student. I was once not too long ago, but I'm not anymore. I'm a teacher, but my field has no relation to video work; it's just my hobby. Last time I tried to get "free advice" from a lawyer, he never showed up to the scheduled meeting. :hv20-smilie119:Hmmm. Not a very good result for you. A reputable lawyer wouldn't stand you up, though he or she may call and reschedule half-a-dozen times. ;)

If you're just doing this for yourself and have no plans of publicly exhibiting your work, the chance of someone coming after you is very, very small. If, however, you want to submit your project to film festivals, you really don't have much of an alternative but to consult someone. I still think the best thing to do would be to call your local bar association, get a referral to an intellectual property or entertainment lawyer and just lay it on the line: you've got no money, but would appreciate some guidance. As long as it doesn't look like you're going to become a regular caller, most lawyers would be willing to discuss the outlines of any concerns specific to your project.

Horror story: I know of a writing team who spent four years doing a musical adaptation of Catcher in the Rye. When it was finished, they submitted it to J.D. Salinger with a request for the production rights. They got back a very nice letter in which Salinger complimented them on the artistic quality of their adaptation and concluded by saying, "sorry, Catcher in the Rye is a novel and I don't want it presented in any other form." They framed the letter and have nothing else to show for their four years of work. And they were lucky -- they weren't sued because they knew enough to try to get the rights before producing it. You're a teacher -- there are a number of high schools that have been sued for producing plays without first obtaining the rights.

It's really a mine field out there.


I guess it's much more alluring when there's payment involved. I know that's true for me!Two years ago, I advised some documentary film producers who had a film that I thought was of significant social value and was going to be screened at a major film festival. They had a question about using 4 seconds of footage for which they couldn't obtain the rights and wanted to know if fair use doctrine would apply. Because I thought the film was important, and because it presented an interesting legal question (I can't elaborate too much, other than to say there was a unique niche doctrine involved), I was happy to spend a few hours pro bono providing an answer. My only payment was an invitation to the premiere screening at the film festival, and the satisfaction of knowing I had made a small contribution to a work that made a profound impression on the audience.

Yes, there has to be something in it for the lawyer, but it doesn't necessarily have to be money. Many lawyers are frustrated artists (at least in their own minds) and enjoy a break from the routine bread-and-butter cases for something a little more interesting and exciting. I'll bet that, with a bit of effort, you'd be able to find someone interested in throwing a couple of hours your way at little or no charge.

With that said, you should also visit dvinfo.net (I co-moderate the Taking Care of Business forum there). dvinfo.net attracts lots of professional videographers and the kinds of issues that are raised in this thread are discussed, in a general way, all the time. I've written a fair bit there on things like incidental reproduction doctrine, fair use, commercial appropriation of likeness laws, false light defamation, and other areas which should be of interest. Obviously, I can't give specific legal advice to anyone, but you may glean enough from the general discussion to, at least, get some guidance.