Legal Fair Use?

[Jesse Bekas]

I have been told that If I use copyrighted music that I have legally purchased (e.g., on CD from Best Buy) in a video project at home, just for myself, and don't distribute it to others, that it falls under fair use.

Now this is probably a stupid question, but...If I am making a personal video for somebody else (say homemovie highlights), who is not going to distribute it, can I legally put music from CDs they own into the project? Although I'm the one doing it, the principle seems the same. Am I even in the ballpark of fair use here?

Anybody know for sure?

[Jeff Donald]

See this this post at the top of the page.

[Jesse Bekas]

Sorry for the mis-post, Jeff. It's getting late here, and I didn't even think about the business board.

[Jeff Donald]

No Sweat, if you can't find your answer on the Stanford site, post back.

[Paul Tauger]

<<<-- Originally posted by Jesse Bekas : I have been told that If I use copyrighted music that I have legally purchased (e.g., on CD from Best Buy) in a video project at home, just for myself, and don't distribute it to others, that it falls under fair use.

You've been told wrong. My personal opinion is that this is fair use, but no court has so ruled. The reference that Jeff posted has some good material on fair use, and on the consequences of failing to read the mind of the copyright owner.

Now this is probably a stupid question, but...If I am making a personal video for somebody else (say homemovie highlights), who is not going to distribute it, can I legally put music from CDs they own into the project? Although I'm the one doing it, the principle seems the same. Am I even in the ballpark of fair use here?

This hypothetical gets further away from fair use. Again, my personal opinion is that things like wedding and special event videographers that do this should come within fair use, but there are a couple of decisions which suggest the contrary. Until a court has ruled, and the opinion been appealed to a leading intellectual property circuit, i.e. the 9th or the 2nd, and the appellate reasoning adopted by courts in other jurisdictions, there is no assurance that this use is fair use.

I've a standing offer to do my best to persuade my firm to accept such a case on a pro bono basis if any wedding or special-event videographer gets sued, because I strongly believe that this _should_ be fair use. However, right now it remains copyright infringement (remember that fair use is a defense to infringement, meaning, but for the finding of fair use it is illegal). Also remember that the federal court, which has exclusive jurisdiction over copyright matters, is very conservative and pro-business (the result of a slew of appointments by Reagan and Bush Sr.). Similarly, the Supreme Court hasn't been this conservative since the time of Roosevelt's "switch in time that saved nine." Conservative, pro-business courts tend to be less generous in finding fair use.

Anybody know for sure? -->>>

Nope, and therein lies the problem. No one knows, and finding out will entail spending several hundred thousand dollars on attorneys fees and court costs, with an attendant liability risk of at least $125,000.

[Jesse Bekas]

Thank you for the swift and in depth reply, Paul.

I guess there really aren't (m)any existing rulings for cases like homemovie highlights/wedding videos with copyrighted music because, well, they're personal videos and therefore unlikely to be seen by the copyright owner. I believe that use which doesn't affect the monetary reality or monetary potential of a work should fall under fair use (with some exceptions).

I wonder if the likelihood of such a suit will become greater now that broadband proliferation allows people to share a lot of video online. At some point, somebody's personal videos w/ CR music are going to go the way of "The Star Wars Kid". Maybe we'll see something then.

[Paul Tauger]

I believe that use which doesn't affect the monetary reality or monetary potential of a work should fall under fair use (with some exceptions).

That is not, however, the test for fair use (though it is one non-dispositive factor).

I wonder if the likelihood of such a suit will become greater now that broadband proliferation allows people to share a lot of video online. At some point, somebody's personal videos w/ CR music are going to go the way of "The Star Wars Kid". Maybe we'll see something then.

I think, too, it's just a matter of time until a suit gets filed. Incidently, "Star Wars Kid" is, almost certainly, fair use -- specifically, it should come within the parody exception.