How far can you go with 'fair use'?

J

JaredSMark

Active member
I'm creating a non-profit/free to view documentary short. There are news clips that I'd like to use (CNN, Fox News etc) but I'm unsure of the legalities.

There are also other documentaries from years past whose footage would go well with my work and I'm uncertain of the legalities of that as well.

From what I've read, court cases about copyright & fair use have sided with the defendants as long as a few conditions are met:



  1. You create something new out of it instead of copying verbatim
  2. You don't use too much of it
  3. Criticism and commentary are added
  4. It's for non-commercial purposes (you're not selling the documentary itself)
  5. You're not competing with the source



There are other technicalities but should I be pretty much in the clear here?
 
"Fair Use" is a defense that you can offer in court if and when you're sued for infringement. But even if you are ultimately successful, it's going to cost you tens of thousands of dollars in legal fees to even get to the point in the case where you could make the "fair-use" argument. Can you afford it? I'd say using intellectual property from the sources you mention without clearing permission is tickling the dragon's tail. Legalities aside, I believe we have an ethical obligation to respect other's property rights. Do the right thing - license the clips you wish to use.
 
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Not sure where in the world you are, but in the UK courts spend plenty of time deciding what is 'reasonable'. So it's context based, and the legal decision based on a stranger's interpretation of what is fair. Assuming you're in court for what the copyright owner considers is 'unfair' use, it's down to a fight between you. As far as I'm aware, the cost of licensing it properly frequently comes up. If your interpretation of 'fair' was coloured by the cost of doing it properly, then it's unlikely the court will decide in your favour. If the something 'new' you have created is in any way detrimental to the copyright owner, then this right could also be challenged. Fair Use doesn't mean carte blanche to do whatever you want - and they defend this with rigour. Going up against big bucks lawyers is a bit scary.
 
Also, I think 'fair use' would be if you used, for instance, a short clip from a TV show -- say 'The Walking Dead' -- in a work that reviews, critiques or criticizes that particular show. But you couldn't claim 'fair use' for the same clip in a work that's a documentary about zombies.

If you're using clips from CNN, is it for the purposes of reviewing or critiquing CNN itself? Or is your documentary about some other subject, and you're using CNN's clips out of convenience, rather than having to do your own original video work?

Best advice -- consult a qualified attorney to determine your potential liability. Because Steve is right -- it will cost you a lot of money before you even get the chance to claim a 'fair use' defense.
 
David W. Richardson said:
I think 'fair use' would be if you used, for instance, a short clip from a TV show -- say 'The Walking Dead' -- in a work that reviews, critiques or criticizes that particular show. But you couldn't claim 'fair use' for the same clip in a work that's a documentary about zombies.
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An excellent shorthand way to illustrate the difference between what might be fair use and what is not. This says it all.
 
For instance, look at the Jon Stewart show, or actually just look at any news channel on TV. They often take clips from another channel with logos and everything included and replay them with criticism/opinions afterward. That's essentially what will happen with what I'm doing.

I see people doing this for YouTube news channels and also radio shows. I've also seen the same thing in other free documentaries. If they do it, I'd like to think that I can too, but then again I'm not a a newscaster.

Maybe I should just contact these news stations and see what they have to say.
 
Three best things brought are context is king (just because a clip was use in XYZ doesn't mean it's also okay to use it in ABC), Fair Use is a legal defense once someone sues you (it is not a shield that prevents another party from dragging you into a court room) and ask an IP attorney.
 
"I'm thinking of cutting out my own appendix. Or maybe doing some quick brain surgery on myself. Anyone have any advice?"

Believe it or not, asking for legal advice on this or any other internet forum is not that much safer or sensible than asking the above.

If you have a legal question then you should ask a lawyer, not post it to a forum of unqualified schmucks like me. And that's my unqualified legal opinion. Also my unqualified medical one.
 
arniepix said:
"I'm thinking of cutting out my own appendix. Or maybe doing some quick brain surgery on myself. Anyone have any advice?"

Believe it or not, asking for legal advice on this or any other internet forum is not that much safer or sensible than asking the above.

If you have a legal question then you should ask a lawyer, not post it to a forum of unqualified schmucks like me. And that's my unqualified legal opinion. Also my unqualified medical one.
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+100
 
tigerten02 said:
There are a lot of misconceptions about what really is "Fair use". American University Center for Social Media has been working for years with judges to get clear guidance on the subject:

http://centerforsocialmedia.org/fair-use
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The problem is people will read this and hear what they want to hear. They'll latch onto some small item and decide it ABSOLUTELY absolves them.

The only SAFE route is to talk to a qualified IP attorney.
 
One of the problems is the good old internet... whilst your IP lawyer might cover you for the country you are in if you publish on the internet you have published in every country in the world. If you then go to another country (work/holiday etc) you could get nabbed there because the laws are different. that has happened more than once. Depending who you have pissed off and the country you are from and have gone to I am sure it is easy to get into a mess.
 
There is some fair use sunshine on the horizon. Read the Escape From Tomorrow story and why it is (presumed) legal.

http://politicalfilm.wordpress.com/2013/10/09/story-behind-escape-from-tomorrow-2013/

The TARGET of the piece has to be the copyrighted material. That's the definition of parody. If you use Disneyland you must be there to skewer Disneyland. That's what makes it permissible. If you were using Disney's characters to have a love story it would not be parody. The target of the infringement is important.

The lawyers went scene by scene and line by line (for four months) to get the cut in line with what would be legal. Disney can still sue them, but now they have E and O insurance and a legal opinion to bolster their claims of fair use.

And check out the trailer -- I definitely want to see Escape From Tomorrow.
 
On one hand that's good to hear, but on the other hand it's not sunshine unless new precedent is set by Disney suing and losing in court. I doubt Disney will sue though because it will generate more media attention and exposure for the movie than the movie could ever generate on its own.

Fair Use has always been a case by case, contextually specific basis which is why preemptively asking "Hey, would this qualify for Fair Use?" is a nearly impossible question to answer. Like you said, parts of the film had to be re-edited on advice from the IP lawyer the context of the material is imperative. The two main points of advice in this thread (Fair Use will not keep you out of court and consult a qualified attorney) are still very valid.


-Andrew
 
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