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Old September 18th, 2007, 08:35 AM   #1
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"Fair Use" clause opinions.

I know that the "fair use" clause is a VERY gray area, but wanted to see if I could get some opinions on my scenario for my documentary. I am looking into using a 15 -20 sec clip of a live musical performance that was performed on a very popular musical "variety" show in the early 80's. We of course have the rights/permission to use the song that was performed (the doc is about this perticular performing artist and he owns all of his own publishing rights). Would this be considered "Fair Use"? Would the so-called fair use be based on the overall length of the show, which was an hour long broadcast, or would it be that perticular live performance which was 3 1/2 - 4 minutes? My use would ONLY be a portion of the performance and would not include any of the host announcing the band, or of the show's graphics which I am sure makes it a little easier. Or does it?
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Old September 18th, 2007, 01:39 PM   #2
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Fair use is a defense if you get sued. Whether it might work in your case depends on the details of your production, intended distribution. Only an entertainment atty. with appropriate experience is going to be able to give you a good opinion for your situation.

If the finished program is to be broadcast you will probably have to assure any network involved that you've got everything cleared and/or have E&O insurance. Same with any distribution company that might handle DVD sales etc.

Best advice is always to seek clearance for everything with advice of an atty.

Hopefully, since the piece is about the artist performing, the production company or its assigns will do you the favor of clearing it for little or nothing, but you have to at least ask.
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Old September 18th, 2007, 01:55 PM   #3
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What Peter said. Just a note ... it's a common error to believe that the length of the material used somehow has a bearing on whether it's "Fair Use" or not. AFAIK, the just not true. "Fair Use" describes specific circumstances under which the material is used, not how much of it is used. From what you've described from my non-lawyer perspective this would definitely NOT be fair use.
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Old September 18th, 2007, 02:14 PM   #4
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I believe length does matter, though in this case it is only one of many factors you should consider (so consult a lawyer).

Suppose a 10-second clip of the concert would be considered fair use. (Which may not be the case, but let's make that assumption.)

Showing the entire concert likely would not be considered fair use. In non-legalese, that would basically be ripping it off.
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Old September 18th, 2007, 02:55 PM   #5
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Well, unfortuantely my funds have dwindled for this project. Been working on it for the past 2 years traveling all over the country on the weekends, and editing at night after the day job! We were just about wrapped up and wanted to have this perticular clip in there, but as I said, funds have dwindled and I cant squeeze another dime out of the account to consult an attorney for a 15 sec. clip. I guess it will just be yanked. I guess the shoot first ask questions later approach has finally caught up to me!
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Old September 19th, 2007, 03:27 AM   #6
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IANAL, but ...

I stumbled across this yesterday:

http://fairuse.stanford.edu/Copyrigh...iew/index.html

which really gives a nice overview although it does not carry the authority of a lawyer. The factors considered are summarized as:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

but read in detail.

Cheers, Erik
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Old September 20th, 2007, 01:23 AM   #7
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Again, as a non-lawyer and someone who's producing a couple of docu's right now, I'd have to agree with Peter and Steve. I don't see that you will get E&O without clearance - based on the use you describe, unless this was newsworthy event that you are investigating and not just a broadcast variety show. Even for what seem like absolutely legitimate fair use cases, copyright holders seem to be going after documentary makers, who usually settle since it's cheaper than a court battle with a large media company that has deep pockets.
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Old September 20th, 2007, 08:34 AM   #8
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Have you reached out to the producer/copyright holder of the program in question? That wouldn't cost you more than some time, an email or phone call or a stamp. that's the first step.
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Old September 20th, 2007, 12:29 PM   #9
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I have made 2 attempts to reach the executive producer of this show via email (no phone number) , and the distributor, which is CBS Paramount Television, does not have a website up (a new site is apparently being built). So yes, I have made attempts at getting the req'd permission.
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Old September 20th, 2007, 12:51 PM   #10
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Generally, you have to use a clearnace firm to get attention in a timely fashion. "Clearance" applies to a lot of issues surrounding any film or video being produced for commercial distribution because the script, music, still photos, third party footage, talent etc. all have to be cleared.

A few links to explore on this topic:

http://www.creativeclearance.com/guidelines.html#A

http://www.indieclear.com/index.htm

http://www.clearance.com/get_yourself.htm
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Old September 20th, 2007, 01:38 PM   #11
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Quote:
Originally Posted by Glenn Chan View Post
I believe length does matter...
Incorrect... length does not matter. The notion that there's some magical length of duration for using a clip, is an internet myth which we've worked very hard to dispel here. See earlier input on this forum from from Paul Tauger (an I.P. attorney) for further edification. Hope this helps,
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Old September 23rd, 2007, 08:24 PM   #12
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Quote:
Originally Posted by Erik Norgaard View Post
I stumbled across this yesterday:

http://fairuse.stanford.edu/Copyrigh...iew/index.html

which really gives a nice overview although it does not carry the authority of a lawyer. The factors considered are summarized as:

1. the purpose and character of your use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken, and
4. the effect of the use upon the potential market.

but read in detail.

Cheers, Erik
Fair use is an equitable doctrine that has been codified by statute. "Equitable doctrine," means the determination whether a given use is a far use is committed solely to the discretion of the judge and only in the context of a copyright infringement suit. The judge must consider the four factors, but none are dispositive -- all four may favor the defendant and the judge may still find no fair use, or none may be present and fair use found.

Whether a given use is a fair use is not a determination that should be made by a lay person. The only way to predict whether something will likely be found fair use is to have a comprehensive knowledge of virtually all of the fair use decisional authority, as well as complete familiarity with the jurisprudential doctrines (including First Amendment law) that underlie fair use.

In other words, not a job for amateurs.
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