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Old April 22nd, 2012, 05:16 PM   #1
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Questions about "Fair Use"

I'm putting together a pitch video, and will probably use a lot that went into that the final documentary well. The question is, I've read from different sources that you can use almost anything if you cite fair use. But the technicalities seem complicated. So, random example: Let's imagine I'm doing a documentary about office equipment, I could use a 2-5 second clip from office space where the guys smash the fax machine to illustrate something in the documentary.

Same thing for music. If the music makes the story, then you can use it under fair use for documentary/educational purposes only. This is what I've made out but I wanted to hear some opinions on the topic.

Thanks.
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Old April 22nd, 2012, 06:05 PM   #2
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Re: Questions about "Fair Use"

Fair use is a defense, not a license. You're going to cite it when you're in court.

There are lots of threads regarding this topic, you can use the search panel up top. Here's one for instance.

Legal Fair Use?
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Old April 22nd, 2012, 06:57 PM   #3
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Re: Questions about "Fair Use"

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Originally Posted by Paul Hildebrandt View Post
The question is, I've read from different sources that you can use almost anything if you cite fair use.
Fair use is limited to a pretty small number of situations. Documentaries don't usually qualify as fair use situations, and the example you site certainly does not. You should really speak with an attorney who specializes in intellectual property & copyright if you want to find out if a specific case qualifies for fair use.
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Old April 23rd, 2012, 12:24 AM   #4
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Re: Questions about "Fair Use"

Yeah, attorney's cost money. Free advice has never served me wrong in the past. The real world situation is that I'm producing a documentary about Space. So if I want to use a 2-5 second clip from a science fiction movie to illustrate a point I'm making. Could I use that? Or if I wanted to use a clip from a TV show illustrating a point about US culture, could I use that clip?

So the question is, if the clip I'm using is illustrating a point in the documentary, and not just there to be funny or to use the clip because I want to. Can the clip be used?
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Old April 23rd, 2012, 06:55 AM   #5
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Re: Questions about "Fair Use"

I'm not a lawyer but I'll try to net it out for you as an avid reader of the many discussions on it. The copyrights are owned by the creator. Unless you've been granted a license, you don't have a right to use it. You may believe your usage falls under one of the exclusions in the law (e.g Fair Use). Exclusions may be challenged in court by the owner and you'll have to pay to defend yourself in court. That's what is meant by Fair Use is a defense not a license.

Here's the law:
http://www.copyright.gov/title17/92chap1.pdf#Section106

What part of the above do you think your usage falls under and implies it's ok to use it without a license?

Some cases to ponder:
Stanford Copyright & Fair Use Center

An entertaining primer on fair use:

Last edited by Les Wilson; April 23rd, 2012 at 06:04 PM.
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Old April 23rd, 2012, 10:20 PM   #6
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Re: Questions about "Fair Use"

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Originally Posted by Paul Hildebrandt View Post
So the question is, if the clip I'm using is illustrating a point in the documentary, and not just there to be funny or to use the clip because I want to. Can the clip be used?
Generally no - you seem to have the fair use criteria slightly backwards. It generally only applies when you are criticizing or satirizing the copyrighted work you are using - using a clip to illustrate a point isn't the same as satire, commentary or criticism of the clip itself.
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Old April 23rd, 2012, 11:30 PM   #7
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Re: Questions about "Fair Use"

So all the documentaries I see that use footage from old tv shows and old movies, had to pay to use those?
But you can use the clip if you are poking fun at it?
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Old April 24th, 2012, 07:55 AM   #8
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Re: Questions about "Fair Use"

Everything needs to be cleared before use or it may come back and bite you on the bum. If you are making something for a client then copyrights must be cleared, ignorance is no defence.
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Old April 24th, 2012, 07:39 PM   #9
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Re: Questions about "Fair Use"

It's a personal project, not for a client. What about documentaries that use news footage, is that not considered public domain? I've had places try to charge me for ABC news footage of congress from 1961, that seems kind of odd.
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Old April 26th, 2012, 10:46 AM   #10
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Re: Questions about "Fair Use"

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Originally Posted by Paul Hildebrandt View Post
It's a personal project, not for a client. What about documentaries that use news footage, is that not considered public domain? I've had places try to charge me for ABC news footage of congress from 1961, that seems kind of odd.
Why should news footage be considered public domain? News organizations are typically owned by large corporations that know how to protect & monetize their intellectual property.

The short answer to all of your questions is this: If you didn't create the footage, you need permission from whoever or whatever entity that did, even for "private" use. That permission is usually given in the form of a paid license.
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Old April 26th, 2012, 05:47 PM   #11
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Re: Questions about "Fair Use"

Quote:
Originally Posted by Paul Hildebrandt View Post
I'm putting together a pitch video, and will probably use a lot that went into that the final documentary well.
Quote:
Originally Posted by Paul Hildebrandt View Post
It's a personal project, not for a client.
Which is it? If you are just going to make something to show your friends/family in the privacy of your own home you can pretty much do whatever you want. If you are going to create a commercial endeavor it's a whole different can of worms.

Long story short, if you ever hope to distribute you doc (be it as a YouTube partner, on DVD, or on video-on-demand) you're going to need prove that you have the legal rights to everything in the project.

Not to long ago I went through this process on a doc I cut on the late comedian Lenny Bruce called Looking for Lenny. Lenny's audio performances, his photo's, his TV appearances we needed permission to use (some people charged, others donated). Images of other celebs we needed permission to use. For a lot of period imagery we used public domain images and footage. For a few very specific instances we didn't license footage but our lawyer signed off on it as he thought it would fall under Fair Use guidelines, which means we got E&O insurance which means if someone does come after us we have some protection.

It honestly comes down to a shot by shot contextual basis as to whether or not Fair Use might hold up in court. There are no hard and fast rules and like others have said, even if you are right you'll still have to pay court costs to prove your case.

If you need footage of space pull things from NASA. As far as I know (and I am not a legal expert) anything that is government sourced is automatically in the public domain. So, an AP photo of Obama needs a license to use but the White House staff photographer's photo of Obama is public domain.

-Andrew
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Old June 16th, 2012, 08:29 PM   #12
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Re: Questions about "Fair Use"

Quote:
Originally Posted by Paul Hildebrandt View Post
The real world situation is that I'm producing a documentary about Space. So if I want to use a 2-5 second clip from a science fiction movie to illustrate a point I'm making. Could I use that?
I know this thread is a few months old, but I just stumbled upon it now.

NASA makes a lot of their footage available to film-makers free of charge. You might want to get in contact with the relevant department and see if they can help you out.
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Old September 19th, 2012, 04:17 PM   #13
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Re: Questions about "Fair Use"

Quote:
Originally Posted by Andrew Kimery View Post
If you need footage of space pull things from NASA. As far as I know (and I am not a legal expert) anything that is government sourced is automatically in the public domain. So, an AP photo of Obama needs a license to use but the White House staff photographer's photo of Obama is public domain.
Andrew - That pretty much used to be the case but I'm not sure it is anymore. In this "new world" our US Government is trying to save money everywhere it can. I've worked in contract administration with a Government department for many years (but haven't for about 12 years) and, you're right, it was standard business procedure that the Government would own all rights to something they procured. I worked in an engineering design and construction office so we had everything that ran the gamut from studies (environmental, energy savings, etc.) to building design (with surveying, drawings, and specifications), environmental cleanups, and so forth.

There are different levels in the specifications in the procurement contracts. Starting with "boiler plate" that the Contracts Department puts in to specifications that the engineers prepare and are nick-picked over by the contract specialists. The drawings may have a statement that the A&E firm owns the rights to the drawings, report, or pictures, say, and can't be reproduced, for example, without their permission, but if the boiler plate says otherwise then the boiler plate would take precedence irregardless of what was written on the drawings.

Before I got out of this line of work there were statements by the supplier (A&E designer, for example) that they owned the rights to their design. When I found a statement on drawings to this effect I'd have them removed. For a building design this is basically true. However, in some cases though, it may be that that the Government "partners" with a firm to develop something. Maybe more like R&D for example. In todays "new world" of contracting it may very well be that the R&D firm would own the rights to what they come up with and the Government would be able to use it for their project.

There is also the possibility that a company or person might try to claim they have the right to something produced for the Government when in fact they may not. In poker I think it's called bluffing.

So, bottom line, one thing that is constant is change.

The other bottom line is, I have to say, I'm not sure what the contract requirements are today.
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Old September 24th, 2012, 02:08 PM   #14
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Re: Questions about "Fair Use"

Basically virtually all use of someone else's intellectual property is theft. Educational use is one of the few major exceptions. And this even when it is NOT commercial but is still put in the public domain (look up John Oswald, 'Dab' and Michael Jackson.

On the other hand you might just try and get away with it! I have dilemma at the moment in that I want to use images of long defunct (early 70s) local newspaper in a documentary. My thinking is a) who the hell owns the copyright? b) would they really care? d) will they ever notice?

Oh and I do wish the US would adopt the UK English for license (verb), licence (noun) :-)
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Old September 24th, 2012, 05:11 PM   #15
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Re: Questions about "Fair Use"

"Oh and I do wish the US would adopt the UK English for license (verb), licence (noun) :-)"

Yep that rankles me too Geoff. But they'd be licentious to make that change now and we might need a license to drive it home on the forum.

But to be fair, the use of it is generally accepted on the web :)

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