Fair use?

H

hepimedia

New member
Question about fair use.

I want to use some footage from a different documentary. I've seen examples of people putting the footage inside of a frame (for example the borrowed footage is being shown inside a TV set). I'm wondering if that's done to "modify" the footage in order to comply with fair use.

I think I got the other fair use points right since my documentary is
- non profit
- does not compete with original
- for education purposes (since it's a documentary)
- adds new meaning (sheds new light on the topic)

Can you please share your advice?
 
i think the fair use points you stated is for 'fair use footage'.

is the original footage you need, fair use footage?, then comply with the fair use policy.

if the original footage is not fair use, you would probably need permission for it. not everything can be used for fair use or educational purposes.

people sometimes use old 4:3 aspect ratio footage or low resolution footage, so they fill the rest of the frame so it won't be black around the image, that's mostly what the tv set is for.
 
In my experience most people grossly overestimate the very narrow exceptions Fair Use provides. Have you tried contacting the people that own the other documentary and asking if you can use their footage?

I cut a historical doc called "Looking for Lenny" (it's the one in my sig) and in order to get E&O insurance so we could get a distributor on board we had an IP attorney evaluate the movie with us to see what we could realistically fall under Fair Use. Most everything we used was either public domain or we had permission from the IP owner to use it (some people we had to pay, others let us use their work at no charge) and relatively little did we use citing the Fair Use doctrine. 'Cause a thing to remember is that even if you think it is Fair Use if someone sues you you still have to go to court and defended yourself (which costs money) and there is a real chance you could lose (which costs a lot more money).

With out seeing what footage you are using and the context you are using it in there is no way to say up front that it qualifies as Fair Use. Context is everything. I agree with Amr that the use of the TV set is for aesthetic reasons and does not have any implications towards Fair Use. Also, I think you are misunderstanding the use of the word "educational". Yes, a documentary (like many other things) can be educational, but I think the phrase "nonprofit educational purposes" means something more along the lines of an academic institution creating a video that will be shown in its classrooms as part of the curriculum or a student creating a video for a class project.

TL;DR
The process is complicated and depends a lot on context so hire an IP lawyer if you want a qualified legal answer to your legal question.
 
oh yes, tried my best to get in touch with the creator.

do you think they would still sue if it's a non-profit (only published online).

Thank you
 
hepimedia said:
do you think they would still sue if it's a non-profit (only published online).
Click to expand...

You're asking the wrong question. There are actually two questions you should be asking....

1. CAN they sue? The answer is "YES!"

2. What will you do if they DO sue?

I don't know about you, but I can't afford to fight a court case. And I sure can't afford to pay a settlement and/or fines. So for me, the bottom line would be -- it's just not worth the risk.
 
<<I think I got the other fair use points right since my documentary is
- non profit>>

Doesn't matter - it's all the same as to copyright law even if you don't sell the end product. Profit or not has nothing to do with copyright, except that commercial use automatically makes it not Fair Use.

<<- does not compete with original>>

I wouldn't rely on this argument - I think technically it breaks copyright anyway. The principle is not that it doesn't compete, but that it would be using someone's creation illegally.

<<- for education purposes (since it's a documentary)>>

As stated above, in Fair Use, education means used for instructional purposes in a classroom, etc. Even then, you can't post it on the web or distribute it in any way, unless password protected and access is limited to those connected with the institution.

<<- adds new meaning (sheds new light on the topic)>>

I'm not sure what is meant by this one, but would also not rely on it, and it's probably not a factor that would apply to Fair Use. Now Fair Use (when the portion of the original used is very limited) can apply to news coverage or certain satire scenarios, but that's pretty murky territory unless you're a legit news or broadcast entity.
 
Honestly, I would be worried if they were to sue you even if they are a non-profit organization. It's kind of like the regulations they have on using music; even if the artist is not well known, or it is just a regular instrumental that people would not recognize, there is still the possibility that they could sue. Just be cautious with what film you use. If possible, notify them.
 
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