Fair Use and Film

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From the course by Duke University

Copyright for Multimedia

194 ratings

Duke University

Copyright for Multimedia

194 ratings

Copyright questions about different formats (data, images, music and video) can be especially difficult. Sometimes the law specifically distinguishes between these different formats, and in most cases there are media-specific considerations that impact a copyright analysis. In this course we will look at four different media, paying special attention to the unique issues for each one and the kinds of information that is important when making copyright decisions for each type of material. We will work through fair use issues for each multimedia format, look at format-specific exceptions in the law, and consider unique issues for seeking permission for film, music, images and data. At the end of this course, participants will have a deeper understanding of how to apply our framework for making copyright decisions, and will be more comfortable with assessing multimedia issues. They will have gained more and more diverse experience for considering fair use.

From the lesson

Film and Video

Copyright issues for film tend to be complicated because of the number of creators and creative works that come together to make them. In this module, students will learn to apply the fundamentals of copyright with regard to film. Topics covered include identification of the various rights and rights holders involved in many films, the role of copyright exceptions when creating or using film in educational settings, and when and how to seek permission to make use of copyrighted material in films.

Fair Use and Film8:08

Anti-Circumvention9:38

Fair Use Examples and Disputes9:47

Meet the Instructors

Kevin Smith, M.L.S., J.D.
Former Director, Copyright and Scholarly Communication
Duke University Libraries
Lisa A. Macklin, J.D.,M.L.S.
Director, Scholarly Communications Office
Robert W. Woodruff Library, Emory University
Anne Gilliland, JD, MLS
Scholarly Communications Officer
University Libraries, The University of North Carolina at Chapel Hill

In this lecture we're going to talk about fair use in video, and film.

And we're gonna talk about when using the fair use exception is appropriate,

both when showing a film, and

also when incorporating footage into another audiovisual work.

First of all, let's talk about the times when the fair use exception may apply.

So in the text of section 107,

it specifically calls out criticism, comment, news reporting,

teaching, including multiple copies for classroom use, scholarship, or research.

But, as we know, and have discussed previously, this is a descriptive list.

So the uses for other purposes can be fair use as well.

Even commercial purposes can be fair use in certain circumstances.

But you can see that teaching, research, and scholarship are really highlighted and

are prominent within the text of the law itself.

So looking at the four factors of fair use, the factors include, the purpose and

character of the use, including when such use is of commercial nature or

a nonprofit educational purpose.

The nature of the copyrighted work itself, the amount and substantiality

of the portion used in relation to the copyrighted work as a whole.

And finally, the effect of the use on the market, or a potential market, for

the work.

So, we are going to talk about fair use in another lecture, and include in that,

transformative fair use.

Which is a focus on the first factor of fair use, purpose and character, and

how the use may provide new purpose or

meaning in the incorporation of the old work into the new work.

Something certainly relevant for film.

So we can also take a look at some examples where an assertion of

fair use is common and in line with the statute.

And there are several best practices and

fair use statements that have been produced.

These were documents produced by members of the community.

Around which the instances of fair use are common in their discipline or

within their profession.

They're not findings by a court,

they're not a guarantee that fair use will succeed, particularly.

But they do serve as very good examples and guidelines around fair use.

So, Anne, can you tell us about some of these best practices?

>> I certainly can.

So I'll start with the Documentary Filmmakers' Statement of Best Practices in

Fair Use.

This is a statement that has proved very,

very useful in that community, especially with regard to getting insurance.

>> Yes.

>> I used it recently when I was talking with a faculty member

who was making a documentary and was struggling with how to incorporate

film footage when he couldn't find the rights holder.

And also, when the rights holder was withholding permission

because of an ideological difference with the film maker.

>> Oh, well, and that can happen.

>> Yes. [LAUGH] So,

he was also struggling with what to do with incidental media that wasn't part of

his script, but that showed up in the film.

For example, he might be interviewing someone and

the person had the TV on in the background.

Or if in other cases there was music that was playing

when he shot some footage in a store or something like that.

And so I told him about the best practices document and he found it really

really useful in helping him do a fair use analysis about those situations.

And here are some situations that that community has decided might be fair use.

Especially if used with the limitations and

cautions that are also read into the document.

And that's why it's a good reason to read the entire document,

not just depend on what I say in this lecture.

And it is available for free online, so it's very easy to do that.

Some of the things that the filmmakers say can be fair use are employing

copyrighted material is the object of social, political, or cultural critique.

Which was what this filmmaker was doing with the footage where he

couldn't get permission because of an ideological difference.

>> Criticism and commentary.

>> Mm-hm, quoting copyrighted works of popular culture

to illustrate an argument or point.

>> Okay.

>> Capturing copyrighted media content in the process of filming something else,

another one that he was struggling with.

>> There's incidental captures.

>> Yeah.

And using copyrighted material in a historical sequence.

And some of the material where he couldn't find the rights holder for

the footage was historical footage.

The limitations that the filmmakers identified included

making sure that the use of copyrighted work doesn't substitute for

a soundtrack or original substantive material.

The amount used needs to be appropriate to the point being made.

We say that over and over again.

>> Yes, over again, yes.

>> And if incidental media is included, make sure that it's really incidental.

That you didn't say, okay now turn the TV to such and such.

That it really did come up in a natural way in the course of the filming.

For example, I once heard Gordon Quinn,

a documentary filmmaker who was involved in creating the best practices,

discuss this sort of situation with the incidental media.

Before the best practices came out,

he'd worked on a documentary where he was filming a family's attempts to

Interact with a son who had some cognitive and emotional disabilities.

And the family was watching TV when a popular song came on the television.

And the song very obviously touched a chord in everyone in the family.

And the son and the parents were able to communicate and

connect in that moment in a way that they normally could not.

This was not something that Quinn had staged in any way.

>> No. >> But he had to clear the rights for it,

which he did eventually with great, great difficulty.

But it was a good example of an incidental music

that made all the difference in a scene in the film.

I also use the Statement of Best Practices in Fair Use for

Dance-Related Materials, sometimes.

Because oftentimes when people have questions about fair use and

dance there's an audiovisual component to the question.

The statement deals with what they call recurring context,

in other words things that happen a lot, where there might be a decision

about copyright that needs to be made and fair use might apply.

Some of those are transferring holding to new formats.

>> Mm-hm.

>> Using copyrighted material in a public exhibit,

capturing copyrighted media when recording presentations.

Yes.

Using copyrighted materials for academic support and

using copyrighted materials on a website.

These activities are always considered fair use.

Again the document emphasizes that you need to look at the appropriate amounts.

The educational use versus the entertainment value perhaps of the dance

performance, and appropriate attribution.

Which is not part of the law, but

is part of the value system of most of these communities.

For example, I've used this document and

it was very helpful in talking to staff at a global studies center at the university.

Who were making a DVD that incorporated dance clips.

They were struggling with what to do about the copyright in the footage,

and also in the music involved.

>> Both good examples.

>> Yeah.

>> Yeah. >> So

these are just a few of the many examples of how fair use can be asserted

when making a film and that is incorporating other film footage into it.

>> Yeah, and the statement of best practices have really been a boon to

the communities that have developed them.

And so having links to those from this course will hopefully

point others in their direction as well.

>> Exactly.

Thanks for watching and listening.

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