Fair Use
- Thread starter ESTEBEVERDE
- Start date
ESTEBEVERDE
Veteran
Insurer accepts fair use claims!
"A major errors and omissions insurer, National Union, a member company of AIG, is accepting fair use claims based on the Documentary Filmmakers’ Statement of Best Practices in Fair Use, when supported by an appropriate lawyer’s letter. This is an extraordinary demonstration of the power of this best-practices approach to making the fair-use option in copyright law useable again. “This is great news,” said filmmaker Alex Gibney, who recently got insurance with such claims recognized.
In only a year, the Documentary Filmmakers’ Statement of Best Practices in Fair Use has changed the clearance practices of documentary filmmakers. The Statement was created by five national filmmakers’ organizations (Association of Independent Film and Videomakers; Independent Feature Project; National Alliance for Media Arts and Culture; Women in Film and Video [D.C.]), with coordination from two American University organizations: Washington College of Law’s Program on Information Justice and Intellectual Property and School of Communication’s Center for Social Media. It has been endorsed by many film and broadcast organizations.
Many documentarians, including Gibney, Robert Greenwald and his entire Brave New Films producer team (Wal-Mart: The High Cost of Low Price, Iraq for Sale), Kirby Dick (This Film Is Not Yet Rated) and Byron Hurt (Hip Hop: Beyond Beats and Rhymes) have employed the Statement to make and release their films. Public television—both PBS and ITVS—accepted Hip Hop’s fair-use claims, based on the Statement’s principles and limitations, for airing on Independent Lens. The cable programmer IFC depended on the same Statement in shaping the policy that guided its decision to coproduce and cablecast This Film Is Not Yet Rated, which includes some 134 fair-used clips from major motion picture companies.
In recent months, several insurers as well have accepted fair-use claims based on the Statement on a case-by-case basis, after learning about the Statement, which dramatically reduces risk. Lawyers such as Los Angeles-based Michael Donaldson have been crucial in the positive education process that is at the core of the best practices model. Now, leading insurance company National Union has made this consideration routine (without of course abandoning the case-by-case consideration that is core to fair use).
Several key figures in documentary film were crucial in spreading the word. Simon Kilmurry, the CEO of public TV series, P.O.V., which showcases leading social documentaries and one of the Statement’s earliest champions, introduced legal scholar Peter Jaszi, who co-coordinated the Statement with the Center for Social Media, to a leading insurance broker, Debra Kozee (C & S International Insurance Brokers). Kozee took the Statement to insurers, and Paul Paray at AIG saw the opportunity to offer the best possible coverage to documentarians by extending coverage for fair use—when the claims are backed by an opinion letter from an attorney experienced in copyright law attesting to the fact that use of the material falls within the doctrine of fair use. “Heretofore the use of such material was excluded from coverage except in extremely rare circumstances for a much higher than standard premium,” Kozee noted.
Fair use will always be a case-by-case decision, but knowing that broadcasters, cablecasters and insurers have now all honored the collective judgment of the creative community of documentary filmmakers about what is fair and reasonable helps documentarians use the rights they have wisely and well."
"A major errors and omissions insurer, National Union, a member company of AIG, is accepting fair use claims based on the Documentary Filmmakers’ Statement of Best Practices in Fair Use, when supported by an appropriate lawyer’s letter. This is an extraordinary demonstration of the power of this best-practices approach to making the fair-use option in copyright law useable again. “This is great news,” said filmmaker Alex Gibney, who recently got insurance with such claims recognized.
In only a year, the Documentary Filmmakers’ Statement of Best Practices in Fair Use has changed the clearance practices of documentary filmmakers. The Statement was created by five national filmmakers’ organizations (Association of Independent Film and Videomakers; Independent Feature Project; National Alliance for Media Arts and Culture; Women in Film and Video [D.C.]), with coordination from two American University organizations: Washington College of Law’s Program on Information Justice and Intellectual Property and School of Communication’s Center for Social Media. It has been endorsed by many film and broadcast organizations.
Many documentarians, including Gibney, Robert Greenwald and his entire Brave New Films producer team (Wal-Mart: The High Cost of Low Price, Iraq for Sale), Kirby Dick (This Film Is Not Yet Rated) and Byron Hurt (Hip Hop: Beyond Beats and Rhymes) have employed the Statement to make and release their films. Public television—both PBS and ITVS—accepted Hip Hop’s fair-use claims, based on the Statement’s principles and limitations, for airing on Independent Lens. The cable programmer IFC depended on the same Statement in shaping the policy that guided its decision to coproduce and cablecast This Film Is Not Yet Rated, which includes some 134 fair-used clips from major motion picture companies.
In recent months, several insurers as well have accepted fair-use claims based on the Statement on a case-by-case basis, after learning about the Statement, which dramatically reduces risk. Lawyers such as Los Angeles-based Michael Donaldson have been crucial in the positive education process that is at the core of the best practices model. Now, leading insurance company National Union has made this consideration routine (without of course abandoning the case-by-case consideration that is core to fair use).
Several key figures in documentary film were crucial in spreading the word. Simon Kilmurry, the CEO of public TV series, P.O.V., which showcases leading social documentaries and one of the Statement’s earliest champions, introduced legal scholar Peter Jaszi, who co-coordinated the Statement with the Center for Social Media, to a leading insurance broker, Debra Kozee (C & S International Insurance Brokers). Kozee took the Statement to insurers, and Paul Paray at AIG saw the opportunity to offer the best possible coverage to documentarians by extending coverage for fair use—when the claims are backed by an opinion letter from an attorney experienced in copyright law attesting to the fact that use of the material falls within the doctrine of fair use. “Heretofore the use of such material was excluded from coverage except in extremely rare circumstances for a much higher than standard premium,” Kozee noted.
Fair use will always be a case-by-case decision, but knowing that broadcasters, cablecasters and insurers have now all honored the collective judgment of the creative community of documentary filmmakers about what is fair and reasonable helps documentarians use the rights they have wisely and well."
ESTEBEVERDE
Veteran
ESTEBEVERDE
Veteran
Insurance for documentary 'fair use'
Coverage to enable free use of film clips
By Dave McNary
"Inspired partly by "This Film Is Not Yet Rated," a veteran showbiz insurer has started offering coverage for documakers, aimed at allowing free use of film clips.
Initiative by Media/Professional Insurance is designed to explicitly allow documentarians to retain coverage if they rely on the "fair use" doctrine, which holds that copyrighted material may be used without compensation if it's for purposes of criticism, comment, news reporting, teaching, scholarship or research.
Goal is to enable docus to contain clips without forcing filmmakers to pay hefty licensing or release fees. In the case of "This Film Is Not Yet Rated," filmmaker Kirby Dick included 134 clips without paying fees, which would have probably run in the $10,000-$15,000 range for each clip.
The clips in "Rated" were employed to portray the inconsistencies within the MPAA ratings system, often running side by side to depict violent scenes that were deemed acceptable and sexual scenes that were not. Pic, released by IFC, grossed $306,000 domestically.
"Documentary films are an important source of education, commentary and criticism," said Leib Dodell, prexy of Kansas City-based Media/Professional Insurance. "Rigidly requiring licenses or releases in all cases does not give filmmakers the flexibility to take advantage of 'fair use' in appropriate situations. This initiative makes 'fair use' work in the real world of independent filmmakers."
Media/Professional, the nation's largest provider of media liability insurance, developed the new coverage in partnership with the Stanford Law School Fair Use Project and several local intellectual property attorneys including Michael Donaldson, general counsel for Film Independent and the Intl. Documentary Assn. The additional coverage would probably range from several hundred to several thousand dollars, execs said Thursday at a media briefing.
Donaldson said at the event that there are two key questions for filmmakers wanting to employ "fair use": Is the material needed to tell the story, and did the filmmaker use only what was needed. He also admitted he was somewhat surprised that no studio's threatened to sue over Dick's employing "fair use" for the clips on "Not Yet Rated."
"I fully expected one of those chest-beating letters from an attorney for a studio, but we never got one," Donaldson said. "I was also quite confident that we would not be sued because Kirby took a very conservative approach on how the clips were used."
For his part, Dick said he's received many inquires from fellow filmmakers about his use of the clips and noted that the overall profile of docus has broadened significantly. "Documentary filmmakers are moving into the cultural debate now that the news media isn't fulfilling its role," he added.
IFC general manager Evan Shapiro said the initiative is particularly welcome since it comes at a time when getting clearances for use of copyrighted material has become much more difficult amid the explosion in digital platforms. "Trying to understand who's the content owner is increasingly muddy," he added.
Part of the initiative includes the availability of half a dozen Stanford Law School attorneys on a pro bono basis to filmmakers who comply with the Center for Social Media's guidelines, published in 2005.
"This initiative will let filmmakers stand up for their 'fair use' rights where they were unable to do so before," said Anthony Falzone, exec director of Stanford's Fair Use Project. "Copyright holders will no longer be able to rely on fear and intimidation. Everyone will be on a level playing field."
IDA prexy Diane Estelle Vicardi made an announcement about the Media/Professional policy Wednesday night at a reception for documentarians at the Academy of Motion Picture Arts & Sciences, leading to a standing ovation by attendees."
Coverage to enable free use of film clips
By Dave McNary
"Inspired partly by "This Film Is Not Yet Rated," a veteran showbiz insurer has started offering coverage for documakers, aimed at allowing free use of film clips.
Initiative by Media/Professional Insurance is designed to explicitly allow documentarians to retain coverage if they rely on the "fair use" doctrine, which holds that copyrighted material may be used without compensation if it's for purposes of criticism, comment, news reporting, teaching, scholarship or research.
Goal is to enable docus to contain clips without forcing filmmakers to pay hefty licensing or release fees. In the case of "This Film Is Not Yet Rated," filmmaker Kirby Dick included 134 clips without paying fees, which would have probably run in the $10,000-$15,000 range for each clip.
The clips in "Rated" were employed to portray the inconsistencies within the MPAA ratings system, often running side by side to depict violent scenes that were deemed acceptable and sexual scenes that were not. Pic, released by IFC, grossed $306,000 domestically.
"Documentary films are an important source of education, commentary and criticism," said Leib Dodell, prexy of Kansas City-based Media/Professional Insurance. "Rigidly requiring licenses or releases in all cases does not give filmmakers the flexibility to take advantage of 'fair use' in appropriate situations. This initiative makes 'fair use' work in the real world of independent filmmakers."
Media/Professional, the nation's largest provider of media liability insurance, developed the new coverage in partnership with the Stanford Law School Fair Use Project and several local intellectual property attorneys including Michael Donaldson, general counsel for Film Independent and the Intl. Documentary Assn. The additional coverage would probably range from several hundred to several thousand dollars, execs said Thursday at a media briefing.
Donaldson said at the event that there are two key questions for filmmakers wanting to employ "fair use": Is the material needed to tell the story, and did the filmmaker use only what was needed. He also admitted he was somewhat surprised that no studio's threatened to sue over Dick's employing "fair use" for the clips on "Not Yet Rated."
"I fully expected one of those chest-beating letters from an attorney for a studio, but we never got one," Donaldson said. "I was also quite confident that we would not be sued because Kirby took a very conservative approach on how the clips were used."
For his part, Dick said he's received many inquires from fellow filmmakers about his use of the clips and noted that the overall profile of docus has broadened significantly. "Documentary filmmakers are moving into the cultural debate now that the news media isn't fulfilling its role," he added.
IFC general manager Evan Shapiro said the initiative is particularly welcome since it comes at a time when getting clearances for use of copyrighted material has become much more difficult amid the explosion in digital platforms. "Trying to understand who's the content owner is increasingly muddy," he added.
Part of the initiative includes the availability of half a dozen Stanford Law School attorneys on a pro bono basis to filmmakers who comply with the Center for Social Media's guidelines, published in 2005.
"This initiative will let filmmakers stand up for their 'fair use' rights where they were unable to do so before," said Anthony Falzone, exec director of Stanford's Fair Use Project. "Copyright holders will no longer be able to rely on fear and intimidation. Everyone will be on a level playing field."
IDA prexy Diane Estelle Vicardi made an announcement about the Media/Professional policy Wednesday night at a reception for documentarians at the Academy of Motion Picture Arts & Sciences, leading to a standing ovation by attendees."
ESTEBEVERDE
Veteran
Duke Law School
Duke Law School
2 minute movies about the ways that intellectual property affects art-- specifically documentary film or music
Duke Law School
2 minute movies about the ways that intellectual property affects art-- specifically documentary film or music
ESTEBEVERDE
Veteran
Use TaleESTEBEVERDE
Veteran
CANADA
Copyright law changes could leave consumers vulnerable
"
Ever recorded a television show or a movie so you can watch it later? Or ripped a CD so you can listen to it on your MP3 player?
With changes to Canada's copyright laws expected as early as next month, these mundane 21st century activities could theoretically be open to prosecution — unless the Conservative government steps in with expanded "fair use" or "fair dealing" protections for consumers.
Close observers of the file say all signs point to a new regime that will improve safeguards for major music, film and media companies and artists for unpaid use of their material, but neglect to make exemptions for personal use of copyrighted content.
..."
Copyright law changes could leave consumers vulnerable
"
Ever recorded a television show or a movie so you can watch it later? Or ripped a CD so you can listen to it on your MP3 player?
With changes to Canada's copyright laws expected as early as next month, these mundane 21st century activities could theoretically be open to prosecution — unless the Conservative government steps in with expanded "fair use" or "fair dealing" protections for consumers.
Close observers of the file say all signs point to a new regime that will improve safeguards for major music, film and media companies and artists for unpaid use of their material, but neglect to make exemptions for personal use of copyrighted content.
..."
ESTEBEVERDE
Veteran
"Fair Dealing is a doctrine of limitations and exceptions to copyright which is found in many of the common law jurisdictions of the Commonwealth of Nations."
Will Clegg
Veteran
Thanks - this is all great material.
ESTEBEVERDE
Veteran
You're welcome herbalmedia.
And of course, be sure to take your time and read through a variety of reputable materials to educate yourself and to seek qualified legal advice for your unique and individual situation should you feel the need.
All the Best and Happy Shooting!
And of course, be sure to take your time and read through a variety of reputable materials to educate yourself and to seek qualified legal advice for your unique and individual situation should you feel the need.
All the Best and Happy Shooting!
moonlitnite
Well-known member
I was getting caught up on CNET podcasts today and was really surprised by MC Hammer's (famous rap singer "Can't Touch This") comments about his new website: www.dancejam.com
On the 12/14 CNET audiocast (scrub half-way through program), MC Hammer says that while the user-generated dance uploads to his new www.dancejam.com website may contain copyrighted music that accompanies end-user dancing, it's not a problem since the dance video's on his company's server will not be longer than 30 seconds!
Huh? Where did he get the idea sync right copyright violations are only in effect for media that streams longer than 30 seconds?
It will be interesting to see if his company can get away with this and, if so, for how long...
Regards, Michael
On the 12/14 CNET audiocast (scrub half-way through program), MC Hammer says that while the user-generated dance uploads to his new www.dancejam.com website may contain copyrighted music that accompanies end-user dancing, it's not a problem since the dance video's on his company's server will not be longer than 30 seconds!
Huh? Where did he get the idea sync right copyright violations are only in effect for media that streams longer than 30 seconds?
It will be interesting to see if his company can get away with this and, if so, for how long...
Regards, Michael
Luis Caffesse
Admin
Let's not forget, MC Hammer was almost as famous for going bankrupt as he was for his songs.
Steve House
Veteran
One of the great entertainment myths of our time is that there's some magic number of seconds under which copyright and licensing can be ignored.
ESTEBEVERDE
Veteran
Great Point Steve!
There is no time limit or size limit whatsoever.
In fact, even a work based on a work can infringe on copyright.
There is no time limit or size limit whatsoever.
In fact, even a work based on a work can infringe on copyright.
TheMacB
Veteran
fair use is not a law. its a defense. so even if you're right and it is fair use, they can still bring you to court. and you still have to pay. and even then, you might lose.
It almost always constitutes infringement.
Derivative works are one of the 6 exclusive rights of the copyright holder.
another myth is that if you don't make money from it, its not infringement. wrong. the first of the 6 exclusive rights is the right to reproduce (regardless of use).
fortunately for musicians we have mechanical licensing for songs. so anybody can record their own version of a song and sell it. they just have to pay the song writer a statutory rate. i think its something like 9 cents per song per record manufactured and distribut
It almost always constitutes infringement.
Derivative works are one of the 6 exclusive rights of the copyright holder.
another myth is that if you don't make money from it, its not infringement. wrong. the first of the 6 exclusive rights is the right to reproduce (regardless of use).
fortunately for musicians we have mechanical licensing for songs. so anybody can record their own version of a song and sell it. they just have to pay the song writer a statutory rate. i think its something like 9 cents per song per record manufactured and distribut
ESTEBEVERDE
Veteran
Hello MacB!
Great to see your post.
Unfortunately, you are completely incorrect in your first assertion.
To Wit:
"17 USC 107
Limitations on exclusive rights: Fair use
§107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A [17 USC § §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."
As you can see, from the quote above, Fair Use is in fact the law.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."
First, anyone can sue anyone for anything anytime.
If the court finds that the case has merit then it can go to trial. But not just because someone sues you.
You are correct though that Fair Use is a defense. But, logically, it is a defense when someone accuses you of copyright violation and a judge finds there is enough merit to the case to go to trial. If you are not accused of copyright infringement by the copyright holder for whatever reason it is immaterial as you can keep doing as you please.
But who are you saying you have to pay?
Certainly not the complainant unless they prevail at trial!
If you are sloppy and do not follow the established guidelines for fair use, you could very well end up being held liable for fair use. It is a must to educate yourself and seek competent legal council anytime you are in doubt of your rights and responsibilities.
I am not quite sure that I understand what you are asserting. Are you saying that Fair Use "almost always constitutes infringement."?
That simply isn't the case. By it's very definition it is Fair Use. It is a provision provided for in Federal Law.
Yes... with the exception of Fair Use. If the derivative work falls under Fair Use... it certainly can be a direct derivate of the copyrighted work.
'Weird Al'' Yankovic's work, 2Live Crew's use of Pretty Woman... and books like "The Wind Done Gone" which is a derivative of "Gone with the Wind" are all derivative works. There are many many example of Fair Use that are derivatives...
You are correct that infringement in itself doesn't have to be an act where the infringer realizes monetary gain.
But, when looking at fair use, profit or nonprofit use is weighed.
Also, the copyright holder does not have the absolute exclusive right to copy their work.
For instance, compact disc owners can copy the disc for their own private use, Libraries can copy discs or portions of books they own...
Scholars can copy works for analysis...
This is true... it is great for musicians on both sides of the copyright.
But it too is subject to Fair Use even to the degree that the entire song can be used under Fair Use.
As I stated earlier, anyone can sue anyone for anything. But, if a copyright holder sues and looses they are more and more often being ordered by the judge to pay all of the defendants legal expenses.
So, suing just to be suing isn't without it's risk either.
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First of all: thanks for all the interesting postings on the subject.
Since I taught music copyright law in Germany in the 90s I can add something from the European perspective regarding music rights:
if you simply paste the rolling stones "I cant get no satisfaction" for 1 second or longer under your footage, youre asking for trouble ( if they find out about it).
If you have a musician who plays the guitar lick of " I cant get no"for you and nobody adds the lyrics / melody you are perfectly fine !
A good music expert can demonstrate that almost ALL music still holding copyright TODAY, is plagiarism from classical music: BACH-MOZART etc...
There is a difference between the copyrights and mechanical rights here ! AFAIK the USA did NOT sign the Rome convention treaty from 1961 and thus there are discrepancies.
For public broadcast TV in Germany you can use whatever music you like but the broadcaster has to file the seconds with GEMA/ASCAP etc.
For Independent and Cinema productions you need every single permission you can imagine!
You may however ask permission from the composer/author/rights-owner to RE-produce the music/song in a studio for a smaller fee than it would cost to use the original material because the difference lies in the additional mechanical repoduction rights of the original recording. Very often you will find that the mechanical rights are of no interest to the composer but of HIGH interest for his publishing company.....
Reading the fair use stories you have in USA, I pity you for your plights. I guess its safest to film in the desert in USA ;-)
Since I taught music copyright law in Germany in the 90s I can add something from the European perspective regarding music rights:
if you simply paste the rolling stones "I cant get no satisfaction" for 1 second or longer under your footage, youre asking for trouble ( if they find out about it).
If you have a musician who plays the guitar lick of " I cant get no"for you and nobody adds the lyrics / melody you are perfectly fine !
A good music expert can demonstrate that almost ALL music still holding copyright TODAY, is plagiarism from classical music: BACH-MOZART etc...
There is a difference between the copyrights and mechanical rights here ! AFAIK the USA did NOT sign the Rome convention treaty from 1961 and thus there are discrepancies.
For public broadcast TV in Germany you can use whatever music you like but the broadcaster has to file the seconds with GEMA/ASCAP etc.
For Independent and Cinema productions you need every single permission you can imagine!
You may however ask permission from the composer/author/rights-owner to RE-produce the music/song in a studio for a smaller fee than it would cost to use the original material because the difference lies in the additional mechanical repoduction rights of the original recording. Very often you will find that the mechanical rights are of no interest to the composer but of HIGH interest for his publishing company.....
Reading the fair use stories you have in USA, I pity you for your plights. I guess its safest to film in the desert in USA ;-)
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