Fair Use

E

ESTEBEVERDE

Veteran
DISCLAIMER:

Legal Information Is Not Legal Advice

This thread's sole purpose it to discuss information and experiences in regards to Fair Use and is for informal purposes only and is no way, shape, form, or fashion intended to give legal advice. No information contained herein should be considered legal advice under any circumstances.

"Legal information" is not the same as "legal advice" -- the application of law to an individual's specific circumstances. If you have the need for legal advice it is recommend you consult a duly qualified attorney if you want professional assurance that any information contained herein, and your interpretation of it, is appropriate to your particular situation.



DOCUMENTARY FILM MAKER'S STATEMENT OF BEST PRACTICES IN FAIR USE

COPYRIGHT AND FAIR USE OVERVIEW > WHAT IS FAIR USE?



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ESTEBEVERDE said:
If you are going to get out there and shoot with the big boys you should know the your rights and responsibilities.

It's not easy but it is what it is.

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-a.html

http://www.centerforsocialmedia.org/

http://www.mediaed.org/index_html
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Hi all,

Perhaps there's some kind of agenda here that's over my head but at least let me suggest our readers be aware of the law.

Further, Indy producers may choose to the license their film under Creative Commons Licensing (go here and select your Country of jurisdiction for types). The creator, Lawrence Lessig gave Buzz Out Loud an interesting audiocast interview which was recently rebroadcast here. Regardless of whether a producer chooses traditional copyright or Creative Common protection, it's well worth listening to Lawrence's insights.

Regards, Michael

Section 107.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
 
All of this advice is fine and good but, bottom line, what counts is you having enough money to pay a lawyer to fight your fight in court.

No money to protect yourself means all the legal paperwork in the world isn't going to mean a thing unless you back it up with a legal budget to cover the courtroom side of the fight until you "might" get paid.
 
According to a seminar I attended at IFP, there are several insurance companies (Media Pro, First Media, AIG and Chubb), who offer E&O insurance to documentary filmmakers who follow the best practices guidelines published by The Center for Social Media. If you qualify for E&O, it means that you don't have to have enough money to defend yourself in court, you just need enough money to pay for the insurance - typically 3-4k, but as much as 15k.
 
moonlitnite said:
Hi all,

Perhaps there's some kind of agenda here that's over my head but at least let me suggest our readers be aware of the law.

Further, Indy producers may choose to the license their film under Creative Commons Licensing (go here and select your Country of jurisdiction for types). The creator, Lawrence Lessig gave Buzz Out Loud an interesting audiocast interview which was recently rebroadcast here. Regardless of whether a producer chooses traditional copyright or Creative Common protection, it's well worth listening to Lawrence's insights.

Regards, Michael

Section 107.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
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That Lessig interview was great, thanks for sharing it. This is an interesting time for copyright law and creative commons is a great way to simplify the process.
 
Jonathan_P said:
According to a seminar I attended at IFP, there are several insurance companies (Media Pro, First Media, AIG and Chubb), who offer E&O insurance to documentary filmmakers who follow the best practices guidelines published by The Center for Social Media. If you qualify for E&O, it means that you don't have to have enough money to defend yourself in court, you just need enough money to pay for the insurance - typically 3-4k, but as much as 15k.
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Be careful.

Many times the insurance coverage only involves a one time settlement while you still lose long term rights to your product.

Policing the use of your material is a long, hard job. In this world of the Internet...it's that much harder.

I have a couple of friends who thought they covered all the bases, produced their feature film, then four months after release it pirated copies were available on the Internet for a song...and none of the money was headed back their way.

Copyright enforcement and protection always takes deep pockets to truly protect. It's another reason people clamor for the big studies to be involved in the release of their work since they have a vested interest in guaranteeing as much profit as possible.

Pretty much an insurmountable task for the lone individual or small group with little or no money.
 
Lensmith said:
All of this advice is fine and good but, bottom line, what counts is you having enough money to pay a lawyer to fight your fight in court.

No money to protect yourself means all the legal paperwork in the world isn't going to mean a thing unless you back it up with a legal budget to cover the courtroom side of the fight until you "might" get paid.
Click to expand...

That's what E&O insurance is for.

It protects you and the distributor against lawsuits.
 
Stanford Law School Documentary Film Program: Frequently Asked Questions

"Documentary Film Program: Frequently Asked Questions

1. Why is Fair Use critical to documentary film?

Fair Use is critical to documentary film because that medium explores and discusses important social, cultural and historical issues. It is often impossible to discuss these issues effectively without reference to the historical material that illustrates, depicts and documents them. A tremendous amount of that material is under copyright. Accordingly, copyright can present a very significant barrier to the creation of many documentary films.
While documentary filmmakers may be able to solve this problem by obtaining permission to use copyrighted material from the copyright owner, this solution is imperfect and often ineffective. First, copyright owners often demand licensing fees that are prohibitively expensive relative to the documentary film budget. Second, the problem is exacerbated where the subject of the film requires extensive use of copyrighted clips due not only to total cost, but the time, effort and expense of tracking down owners and asking for permission in the first place. Finally, copyright owners may refuse permission altogether.
A robust and effective Fair Use doctrine allows filmmakers to avoid these problems and makes it possible for documentary filmmakers to take on subjects that would otherwise be difficult or impossible to discuss.


2. What is the Documentary Film Program?

The Documentary Film Program provides filmmakers with information about fair use, access to insurance for liability arising out of copyright litigation, and access to lawyers who will defend copyright claims pro bono or at reduced rates.
The Program was created through a collaboration among the Fair Use Project, leading intellectual property attorney Michael Donaldson and Media/Professional, the nation's leading insurer of media risks.


3. Why is the Documentary Film Program important?

In order to show and distribute their films, documentary filmmakers usually need to obtain "errors and omissions" insurance to insure against liability for copyright infringement, defamation, and other media risks. In the past, it has been difficult and expensive, if not simply impossible, for filmmakers to obtain insurance that covers any unlicensed use of copyrighted content.
A significant part of this problem has been the fact that Fair Use law is complicated and difficult to apply. It was therefore difficult and expensive for insurance companies to assess Fair Use issues.
In November 2005, the Center for Social Media at Washington Colleges of Law teamed with leading academics and lawyers to create the Documentary Filmmakers' Statement Of Best Practices In Fair Use. These Best Practices synthesized established principles of Fair Use into an understandable set of guidelines that are easy for filmmakers to apply.
Media/Professional, the nation's leading insurer of media risks, has recognized Best Practices as an effective guide to established Fair Use principles. In conjunction with the Documentary Film Program, Media/Professional now offers errors and omissions insurance for filmmakers who make use of unlicensed copyrighted material, but comply with Best Practices. Accordingly, filmmakers now have access to affordable insurance that permits them to exercise their Fair Use rights.
The Fair Use Project, in turn, has taken this approach a step farther. Working in conjunction with Media/Professional, the Fair Use Project is committing to provide pro bono defense of copyright infringement claims for certain films. With this commitment of pro bono defense in place, Media/Professional will issue an insurance policy that is significantly cheaper.
This will allow filmmakers to exercise the full extent of their rights under Fair Use because they will have lawyers in place to defend them should a dispute arise, and insurance in place to protect them should they lose.


4. How does the Documentary Film Program work?

A documentary filmmaker who agrees to, and does, comply with Best Practices can submit a rough cut of the film to the Fair use Project, along with a detailed clip log of all copyrighted material used without permission.
If the film is accepted into the Program, the Fair Use Project (or other Approved Counsel participating in the Program) may provide some or all of the following services, depending on resources and capacity.
At a minimum, the Fair Use Project or other Approved Counsel will review the accepted film, and determine whether, in the opinion of counsel, the film complies with Best Practices. Once compliance is certified, the filmmaker will have access to the favorable errors and omissions insurance offered by Media/Professional.
In addition, the Fair Use Project may commit to providing a pro bono defense to copyright claims arising out of the film's use of copyrighted material under Fair Use. With this commitment in place, the errors and omissions insurance from Media/Professional will be substantially less expensive.
If the Fair Use Project does not commit to providing a pro bono defense to copyright claims, other Approved Counsel participating in the Program may commit to providing that defense at a reduced hourly rate. With this commitment in place, the errors and omissions insurance from Media/Professional will be less expensive than it would be without that commitment, though not as inexpensive as it would be with a pro bono defense commitment in place.


5. How do I submit my film?

The following materials are required:
a. Two copies of the film on DVD with running time stamp
b. A detailed clip log that includes a separate entry for each instance where unlicensed copyrighted material appears in the film. For each entry, the clip log must contain ALL of the information called for by the sample clip log available here.
c. A cover letter explaining where you are in the production process, what if any distribution or funding you ave received, what assistance you require, and any other information you think would be pertinent.
Please send these materials to:
Anthony Falzone
Stanford Law School
Center for Internet & Society
559 Nathan Abbot Way
Stanford, CA 94305-8610


6. When should I submit my film?

In order to participate in the program, documentary filmmakers must submit films late enough in the production process that we have a good idea what the final film will look like, but early enough that edits can be made to the film as necessary to comply with Best Practices.


7. Does the Documentary Film Program help with clearance?

No. We do not offer any assistance in obtaining permission to use copyrighted material from the copyright holder, but we can refer you to attorneys who will do so on a paying basis.


8. Are there other legal resources for documentary filmmakers?

Yes. The following organizations provide helpful information for documentary filmmakers.
  • International Documentary Association
  • Center for Social Media
  • The Fair Use Network
  • Public Knowledge's Fair Use Resources
  • Stanford University Libraries Copyright and Fair Use Resources
  • Cornell Law School Copyright Law Materials
  • Radford University's Copyright and Fair Use Links
  • United States Copyright Office"
 
This reminds me of an argument I keep getting in to with my girlfriend.

Say we're walking somewhere, minding our own business, crossing the street, and a car roars in to the crosswalk, barely stopping.

My girlfriend walks straight across the crosswalk, directly in to the car's path, expecting them to stop, and here is the crux of our disagreement.

I tell her to watch out, and she says, "Why? I have right of way. He can hit me, but then he'll have to pay my hospital bills." And she's right. And from my point of view, I'd rather not go to the hospital to begin with.

So yeah, you can run around and quote the law at every person who disagrees with you could ultimately be right. At the same time, you're going to wind up in a court room, and that snotty attitude is going to piss off a cop who decides to either A) confiscate your equipment or B) simply break it in front of you and you're going to find yourself with nothing but a legal argument left that's ultimately worthless because of the amount of time, money and energy invested just to get back to where you started.

No one's disagreeing with you. But in a world where those you spit the law at could just as easily turn around and break every thing you own, you wind up doing yourself a much bigger disservice than simply working to get along with every body. If you can't get your shot otherwise, then go in and take it, but I'll be happy doling out my agreement forms, getting all the signatures and not worrying about getting my camera broken or going to court over a pointless lawsuit just to prove you're right.
 
mrWr0ng said:
This reminds me of an argument I keep getting in to with my girlfriend.

Say we're walking somewhere, minding our own business, crossing the street, and a car roars in to the crosswalk, barely stopping.

My girlfriend walks straight across the crosswalk, directly in to the car's path, expecting them to stop, and here is the crux of our disagreement.

I tell her to watch out, and she says, "Why? I have right of way. He can hit me, but then he'll have to pay my hospital bills." And she's right. And from my point of view, I'd rather not go to the hospital to begin with.

....
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Hello mrWr0ng.

Sorry you keep getting into arguments with your girlfriend. That sounds very unpleasant and problematic indeed!

I would have to agree with your summation of her dangerous and silly behavior. Also, I would add that there are many traffic fatalities here in San Francisco involving pedestrians and autos and encourage you to look both ways before crossing.


mrWr0ng said:
...
So yeah, you can run around and quote the law at every person who disagrees with you could ultimately be right. At the same time, you're going to wind up in a court room, and that snotty attitude is going to piss off a cop who decides to either A) confiscate your equipment or B) simply break it in front of you and you're going to find yourself with nothing but a legal argument left that's ultimately worthless because of the amount of time, money and energy invested just to get back to where you started.
...
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I am not sure what you are getting at with your rude and abrasive comments. Why you would personally attack me is quite puzzling and I believe against the DVX forum rules.

As to fantasy hypothetical:

A) a Cop confiscating my equipment: A police officer could only do so legally if I was being arrested (they would have to then as they are required to protect both my person and property while in their custody) or it was to be logged as evidence for a crime.

Should they do this by mistake or maliciousness, they are indeed exposed to both criminal and civil liability and the agency they work for is open to civil liability as well.

B) "simply break it in front of you and you're going to find yourself with nothing but a legal argument left that's ultimately worthless because of the amount of time, money and energy invested just to get back to where you started."

This is crime. A quite serious crime. They would actually be charged with armed robbery and misuse of public office among other things. Furthermore, they and their department would be liable to me civilly.

But, rest assured, if this were to every happen, I would most definitely contact Kamala Harris for her assistance in resolving such a horrible incident.

But, to be quite frank with you, I find the vast vast majority of police officers quite cool and amenable especially after you get to know them for even a few minutes.

I personally have never had a problem with one and they seem on the whole to give me an embarrassing amount of latitude when conduction both my personal and private business.

The San Fransisco police are particularly cool about things.


mrWr0ng said:
...
...
No one's disagreeing with you. But in a world where those you spit the law at could just as easily turn around and break every thing you own, you wind up doing yourself a much bigger disservice than simply working to get along with every body. If you can't get your shot otherwise, then go in and take it, but I'll be happy doling out my agreement forms, getting all the signatures and not worrying about getting my camera broken or going to court over a pointless lawsuit just to prove you're right.
Click to expand...

Oh, I'm sure they are. But, I haven't the slightest idea what your disagreement might be nor your facination with people destroying my property.

Perhaps you've been wronged and have had it all go South on you?

If this is the case, I am most truly sorry and you have my heart felt condolences.


In closing thank you so much for your diversion. I must say that it is the first and sadly the last time I can induldge you as time is finite and there are bigger fish to fry as it were.


If, at some future date, you care to discuss fair use without such violent and hostile imagery, I would love to hear your points.

Until then take care my so apropos named friend!


All the Best! :beer:
 
I think Estebeverde's diligence on these subjects comes from a good source -- the notion that if we don't defend our rights, we will lose them. And that there is confusion over what our rights actually are; repeated mantras are rarely factual (I mean, that's how we get the pervasive idiocy that "you only have to change a song by 10%" and whatnot). Which is why it's my stance that when in doubt, one should contact an attorney who can interpret *your particular situation* against the existing statutes that apply in *your particular state* and furthermore can research the case law that judges rely on when interpreting how those particular laws have been enforced in the past.

For example, while it is a fair thing to post a link to this document:
http://marklitwak.com/articles/general/adopt_position.html

What does it mean? What does it really mean? Well, it's a statement by some influential groups as to what should or should not be considered "fair use" when working in the documentary genre. Fine and dandy -- but is it law? No, obviously not. If you abide strictly by this document, are you "safe"? Not necessarily, as this document is not the law. Could it become law? Yes-ish, if judges decide to conform to these recommendations as guidelines towards deciding cases, in which case the settled case law conforms more and more to these recommendations. But we're not there yet, are we?

I don't think anyone has any problem with publishing links to useful and valuable resources such as Mark Litwak's site, the documentary filmmaker's fair use statements, Krages' photographer's rights, etc.

The only part I have a concern with is when a potentially unqualified and even anonymous individual on the internet tells someone (personally or generally) "you don't have to get a release" or "you don't need permission" or otherwise informing or instructing people in what their legal obligations are. The law is an incredibly complex subject (made that way by lawyers, so that only lawyers and judges can interpret it, sure, but it is the way it is) and while it's fine and dandy to say to people "hey, people, be aware of your rights -- read some of this information, etc" -- it's not fine to tell someone (especially lawyers who are trying to help) that they don't know what they're talking about and demanding them to produce case law in order to prove their point. If a competent lawyer advises you not to do something, it would probably be prudent to heed that advice.

Now, to address Mr. Wr0ng's scenario -- according to the "Photographer's Rights" pamphlet published at http://www.krages.com/ThePhotographersRight.pdf, ostensibly by a lawyer (haven't bothered to verify that info), nobody can take your camera and break it or take your footage.

Fine. But that doesn't mean it won't happen. And that's what I think Mr. Wr0ng was trying to say. This stuff happens, and it's better to avoid the situation (such as not being an idiot who puts themselves in harm's way intentionally, such as the street-crossing example).

Or, let's try to follow Krages' statement -- he says you can shoot whatever you want, whoever's property, as long as it's from public land. Sure, fine -- except when it's not, as pointed out about military bases, etc. Further complications come about depending on how you intend to use what you shot -- you could perhaps find yourself legally shooting Brad Pitt from public property, say, walking into a Food Lion store. Fine -- that's legal. But if you then intend to use that footage in a commercial for Food Lion saying "Food Lion -- Brad Pitt Shops Here", prepare to find yourself on the wrong end of a Right of Publicity lawsuit. Just because you obtained that footage legally does not give you the right to use it however you want! That brings us back to the whole "fair use" thing.

Nowhere in the Krages article does it mention getting a permit, either -- yet if you try to set up a film crew you may very well find yourself ushered out by police if you don't have the appropriate permit.

Your rights are determined by written law, yes. Municipal codes, state law, federal law, constitutional law, yes. But they're also determined by the particular judge's interpretation of your situation and existing case law. And while the right of appeal exists, it exists as a practical matter only to those who can afford to continue employing the lawyers to keep fighting the issue.
 
That's exactly what I'm saying. Yeah the law guarantees a lot of things, but ultimately it doesn't have the power to enforce those guarantees. It was less than a year ago that 2 cops burst in to an old lady's house, gunned her down and then planted a bag of marijuana on the scene to cover their butts. They would have gotten away with it had it been a 20 or 30something year old as opposed to an elderly grandmother. Imagine how many times they actually DO get away with it.

I'm not trying to personally attack anyone, all I'm saying is that when you yell "I know the law! I know my rights!," a punch to the face and a bag of white powder "found" in your pocket is all that they need to put you away for as long as they feel like. And in that scenario, the only thing between you and the end of your life as you know it is the morality of those officers, and lately that's been a pretty bad bet.

I'm not trying to say all cops are evil or that you don't have rights, I absolutely agree you should defend your rights to the full extent. All I'm saying is that your approach only really works when every party involved respects the law, and that's assuming a lot in any situation. That's why it's far better to cover your butt in advance and not assume any one else is going to play fair.
 
This is true.

Ultimately, the only rights you have are those that you are willing and capable of enforcing yourself.

By in large the cops are actually great people and hold the very patriotic sentiments you have just expressed.


The most important point to keep in mind is just because there is risk someone will violate my rights doesn't mean that I can not nor should not exercise them.
 
moonlitnite said:
Hi all,

Perhaps there's some kind of agenda here that's over my head but at least let me suggest our readers be aware of the law.

Further, Indy producers may choose to the license their film under Creative Commons Licensing (go here and select your Country of jurisdiction for types). The creator, Lawrence Lessig gave Buzz Out Loud an interesting audiocast interview which was recently rebroadcast here. Regardless of whether a producer chooses traditional copyright or Creative Common protection, it's well worth listening to Lawrence's insights.

Regards, Michael

Section 107.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Click to expand...


Hey Michael.

Just wanted to give you my thanks and appreciation for such an excellent link!
 
For what it's worth....

The Constitution guarantees free speech. And yet, you can still be sued for slander or libel. So the First Amendment is not an absolute.
 
chapelgrovefilms said:
For what it's worth....

The Constitution guarantees free speech. And yet, you can still be sued for slander or libel. So the First Amendment is not an absolute.
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You statement is correct and incorrect.

The First Amendment is absolute as a component of the US Constitution but there are other Components of the Constitution that have equal weight and they all are therefore balanced.


There are also lessor laws that deal with speech but they must conform to the U.S. Constitution and not the other way around as per the Supremacy Clause. All of these laws flow from the U.S. Constitution.

An example is that you may not yell fire in a crowded movie theater to cause panic or harm.



But, what this thread is exploring is fair use.

That is, the right to use the images, sounds, wittings, and works produced by someone else.

While it does deal with free speech it is more so a question of property rights (Intellectual Property Rights to be Specific).
 
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