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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.
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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.
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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.
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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.
Kevin Smith, M.L.S., J.D.Former Director, Copyright and Scholarly Communication
Lisa A. Macklin, J.D.,M.L.S.Director, Scholarly Communications Office
Anne Gilliland, JD, MLSScholarly Communications Officer
