Last week, we looked at what fair use ISN’T.  So now let’s look at what it is.

Basically, fair use depends on a few factors, most importantly (1) the amount of material you copy from the original work,  (2) your purpose in using that material, (3) the nature of the work that you’re copying, and (4) the effect that your copying has on the original art.

(1) The amount of material you copy from the original work –For the first factor, you are generally allowed to use snippets of a work as long as you don’t appropriate the “heart and soul” of the work…what, exactly, that means is open to some debate. As an example, if you grab a few seconds from another film, you’re probably in the clear. However, you would probably not get away with including the entirety of that film in your own project. How much is too much? That’s different in every case, so just try to exercise some common sense.

(2) Your purpose in using that material — Fair Use allows you to make use of a pre-existing artistic work for purposes of education, training, news reporting, scientific research, critique or commentary, or parody. Think of the last time you watched critic review a movie on television. It probably included a short clip from the movie being reviewed, right? Likewise, you might have been in a classroom lecture where the teacher will show video clips to illustrate some point or other. These are other examples of situations that are more likely to be deemed Fair Use.

(3) The nature of the work that you’re copying — Certain sorts of material are more likely to fall under the fair use exception – for example, clips from non-fiction works. We generally agree that it’s a good thing for the public to be well-informed on history, so would it be in the public interest for a historical video – like, say, the Zapruder film of President John F. Kennedy’s assassination – to be blocked from public view because someone claimed copyright ownership? (In fact, Time magazine did make such a claim after a history book used stills from the film as illustrations. They didn’t prevail.)

(4) The effect that copying has on the original art — Finally, let’s look at the effect on the original work. Remember that copyright law exists in theory so that an artist can profit from his own hard work without someone else undermining him. Thus your work can’t be so similar that people would start buying yours instead of the original. One sticking point for many is that fair use depends a lot on intentions and motivations. For example, let’s pretend that I wrote a parody song making fun of Lady Gaga’s latest song by changing the lyrics to be about cheeseburgers. It’s fine if people listen to my song and think, “Hey! This song makes a good point. Its sharp and biting satirical message has made me realize that Lady Gaga is a hack and I will henceforth refuse to purchase her music!” If Lady Gaga’s sales start to drop as a result, she can’t sue me because my ridicule was too effective. HOWEVER, I could get in trouble if people listen to my parody and think, “Hey! This song is pretty good! It’s pretty much like Lady Gaga, so instead of buying the original song from her, I’ll just buy this parody instead.” A parody work that hurts the original artist by becoming a substitute for their work will most likely not qualify for a fair use exception.

Again, acknowledging that you don’t own the original artistic work, giving credit to the original artist or using a work without any intention to profit will often encourage an original artist to let you use his work, but it does not necessarily mean that your work will fall under fair use.

If you really want to be sure you’re in the clear when it comes to copyright with your video project, you owe it to yourself to check out Videomaker’s Archival Storytelling book.  It breaks down all the elements of copyright, so that you’ll know exactly what you can get away with when you need to use footage from another person’s work.

We frequently get questions from video creators about the rules for making use of other creators’ work in their own projects.

If a piece of art was created so long ago that its copyright has expired and it’s since fallen into the public domain, you’re free to make use of it any way that you want. (To learn more about using archival footage in your videos, check out our  informative Archival Storytelling book) But if a piece of art is still under copyright, you’ll want to make sure that you’re in the clear. Most U.S. Creators are aware of a legal doctrine here in the States called “fair use,” an exception to copyright law that lets you make use of copyrighted material for your own artistic purposes. Unfortunately, there’s a lot of confusion about exactly what constitutes fair use. Let’s try and clear up some of the misconceptions so you can better understand when you can incorporate others’ material into your videos.

(First, please be aware that nothing said by Videomaker should be construed as legal advice. If you’re really worried about your rights, you should consult an attorney or legal expert before you make any rash decisions.)

Here are some common misconceptions that we see from video creators:

“This counts as Fair Use because I gave credit to the original artist.” Giving credit where it’s due is always a best practice – and just good manners. However, giving credit does NOT instantly bestow fair use protection upon you. At best, a polite tip of the hat may encourage the original artist to allow you to use their work for free. But this is entirely up to the artist’s discretion. They don’t have to let you use their work just because you acknowledged that they are the original creator and, if they don’t like what you’ve done, they can still try to make you remove it.

“I’m not making any money off of this, so it must be fair use.” Again, whether or not you make money can be a consideration in fair use, but it is not dispositive. In fact, some fair use works can be sold for profit. The fact that you’re not profiting may again make the original artist more sympathetic to your case, but it doesn’t mean that you’re automatically covered by fair use.

“I found this original artwork on the Internet, so obviously it’s free for me to use.” Just because an artist places his or her work on the Internet does not mean that they are giving you carte blanche permission to use it as you will. The same copyright restrictions that apply offline still apply online.

Again, acknowledging that you don’t own the original artistic work, giving credit to the original artist or using a work without any intention to profit will often encourage an original artist to let you use his work, but it does not necessarily mean that your work will fall under fair use.

You’ll always want to make sure that you’ve got your rights protected when you put together a video project.  Besides Archival Storytelling, you can get more help in keeping your project legally in the clear with our Indie Film/Video Legal Documents DVD.

I love that Staples commercial, showing parents dancing through the aisles to the Christmas song “It’s the Most Wonderful Time of the Year”.  Classic.

Yes, the kids are back in class, and you might have a few thoughts of putting together a School Yearbook. One word: ORGANIZE!

Define Your Role

The most common types of videos in school are:

Events: plays, concerts, sports, etc.;

Informational: public announcements, principal’s message;

Educational: daily or weekly newscasts conducted by the media arts class or class video projects.

Which category you fall into determines your own involvement with shooting and editing the project. If it’s Events, whether for fun or profit, you simply need to know which ones to cover when and where. You and your assistant(s) will be doing most of the shooting and editing.  If it’s Informational, you may be sharing the operation of the equipment with students and faculty.  If it’s the Educational category, most of the gear will be operated by the students, and your position will be as a guide or trainer.

Here are a few  tips from our “Take 5” series to get you ready to hit the long dusty corridors yourself.

1- Be Prepared

OK. So that’s the Boy Scout motto, but it holds true to many things in life, and in video, managing your media should be a priority. You’re looking at nine months of activities, from school plays and sporting events to field trips and graduation. That’s a lot of shooting. So define your scope. Are you shooting just your own child, for one particular class, or for the entire school? Each has its own rules. Step 5 covers some of the legal. Being prepared can be as simple as having permission releases signed in advance and keeping track of school activities on a yearlong calendar. But most likely, you should take the time after every shoot to number the tape or media file, give it an obvious title – like 0109-sept, which means tape one, ninth month, September – and log it. Log it now, not in June!

2 – Go to the Head of the Class

If you’re going to be on campus for more than an occasional school activity, meet first with the school principal to explain yourself and find out what your limitations might be. Then ask to meet the teachers to explain who you are and what you’re doing. Determine how you will obtain school access, and know who’s in charge of each activity and defer to them at all times. Go to PTA or APT meetings and introduce yourself there.

Protect yourself. Never allow yourself to be alone with any one child. You never want to be suspected of doing creepy things with a camcorder, so make sure there’s always an adult present when you’re engaging children. This protects them as well as you, your reputation and your business.

3 – Five W’s

Who: Don’t forget to get video of everyone associated with the project you’re covering: students, teachers and parents, including school support staff, like the secretary and custodian. Make sure you cover all levels of the event, you might need to over-shoot, so plan well, but if this is going to be a yearender for the class,  make sure you  get coverage of EVERY child at as many events as possible. If it’s a collection for the entire school, well, it might not be easy to cover every child, but keeping track on a class roster helps.

What: Video projects can be anything from a singular video like a chemistry demonstration, a compilation like a sports highlights reel or video yearbook, or something more personal like a thank-you to a special teacher. To better prepare your video, you need to know up front what your intentions will be. There’s nothing like changing horses mid-stream to make the fun project become the project form hell – two weeks before the end of school.

When: You can edit your video in chronological order, September through June, or by event, Homecoming Dance, Spring Prom, etc. Doing it like this allows you to edit some key points in advance – like after every game, or event, or a highlights reel at the end of each month. Then you’ve at least trimmed the fat and won’t have to sift through the ‘edit room floor’ footage again nine months later.

Where: Opportunities aren’t always just at school. A field trip to a museum can be turned into a more extensive research project for the class. I know a local teacher who every year picks a different gravesite of one of our town’s notable ancestors to start a genelogical search on. By using video, he’s engaging the kids, and teaching history that they can relate to.

Why: Kids can learn from the project by interviewing real people who witnessed history in the making or learning story-telling skills, composition and editing. Video works as a great teaching tool. Have them interview their own teacher, grandparents, next-door neighbors or any local ‘stars’ like the sports heros, civic leaders, or police, hospital or fire fighters about their job and their childhood.

4 – Stay Legal

Video for just your own family’s use might simply require permission in advance to bring a camera to an event. For this, you should never hold a singular shot on any other child longer than a few seconds. Does this mean you can shoot only close-ups of your own child? Of course not. Do shoot lots of closeups of your child, but don’t forget to include variety in medium and wide shots, so the activity makes sense later on. Just be aware that in this age of internet creepiness, most parents are leery of video cameras pointed at their kids. If parents request that you don’t videotape their child, be polite and acknowledge the request. This is not an exposé. You do want to get some of the other kids, your child will enjoy looking back at the antics of his friends as well as his own.

If you’re shooting your child’s classroom activities for the entire class, to be given to the students at the end of the term, then you need to get written permission from each child’s guardian on record. In this case, your final edited piece must include each child in the class. Don’t be exclusive, and don’t focus on just your own child or the popular kids. (I made this mistake once, when I was editing the school yearbook for my son’s 6th grade and to this day still hear the angst of some parents who complained to me that their child wasn’t ever seen a-n-y-w-h-e-r-e in the entire project.)

Being sensitive to parents’ wishes and needs, and being ethical and above the clique of popularity are important traits to hold.

If you are shooting for the entire school, written permission slips should be sent home to each parent at the beginning of the school year and to parents of children who join the school mid-term. Follow up with the teachers of children whose parents refused or have forgotten to sign, so that you know which kids you have to exclude in advance. If you can, hold an afterschool meeting to explain to parents what you are doing – they may be willing to help.

5- Recess

Remember, videotaping kids at play is a great endeavor, they create  such complex little worlds, however if you get too close, you are in danger of causing great conflict in your own world. To read about how your first priority is to protect yourself AND your subject, read our “What’s Legal” column, “Understanding Privacy Rights of your Subjects“. Don’t Be a Video Voyeur… Professional videographers should always be savvy about their subject’s privacy and space. http://www.videomaker.com/article/13774/

To learn how educators are using video to get more kids interested in learning, read this feature: “Using Video in Schools” http://www.videomaker.com/article/14312/

What about the Art?

A while back, we received a letter from a reader who needed to shoot general scenes of children on playgrounds for a documentary and wants to disguise the kids’ identities, while adding a little more artistic edge to his video. This next feature, Protecting Kids’ Identities goes beyond this Take 5 column, especially for some great artistic tips on shooting on the playground and in the classroom, and conducting interviews with your little subjects.

Your First Amendment Rights – New rulings states you can’t get arrested for videotaping police, politicians, and other government officials.

You’ve read many stories right here in Videomaker and other publications about someone with a camcorder witnessing a confrontation with police and these witnesses holding that camcorder do what anyone would – they record the act. They might not know what or why the confrontation is about, but by recording the action, in some cities or states, they were considered accessories to a crime or participating in criminal activity. Some states, such as Massachusetts, would use a wire-tapping ruling against the camcorder user as an excuse to confiscate the camcorder and arrest the user. Not anymore. A Federal court has ruled in favor of videographers. Americans with recording devices are now protected under the First Amendment to record public officials doing their jobs in a public arena.

Whether it’s a cop getting aggressive during an arrest or a congressman entering a bordello, if the act is in a public area – they might not like it – but they’re fair game to cameras rolling.

You may recall the story of Simon Glik in Boston, who stumbled across an arrest in progress in a public park. He videotaped the officers as they were arresting a man, but as soon as one of the officers noticed that Glik was recording the process, Glik was arrested. Not for shooting video, but for recording audio, because he was in violation of Massachusetts’ wiretap law. Glik was charged with wiretapping. But he was later found not guilty by the Boston Municipal Court, because his recording device wasn’t concealed. So he filed a civil rights violation suit. The police claimed he was in violation of something called qualified immunity, which is supposed to protect them from being harassed while doing their job. The U.S. District denied their claim and the police filed an appeal, which lead to the important ruling.

An excerpt from the August 26, 2011 Appeal From the United States District Court for the District of Massachusetts ruling,  states:

“In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik’s constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.”

This is fascinating text; you should read the entire ruling. It spells out how Glik heard what he thought was excessive behavior from the police so he started recording the action, how – when challenged – he responded that he was concerned for the man’s well-being. And when he was arrested, and then cleared, he tried to file a complaint with Boston’s internal affairs and was ignored.

What we’ve gained here is that public officials can’t “bully” us into not recording what we see. For instance an innocent bystander doesn’t have to make the decision to “not get involved” when he stumbles upon an action that appears someone’s rights are being violated or a public official is breaking the law.

What this gives videographers – and ordinary citizens with a cell phone alike – is protection against being considered a criminal for being a witness to an event – good or bad – that takes place on public property or while the witness is on public property.

One might argue that the problem with a confrontation being recorded by the witness who stumbles upon the event is that it could be similar to walking into a movie already in progress. The recorded images don’t show what led up to the event, only that frozen moment in time. But then again, an eyewitness without a recording device might be in the same situation. “I saw a man running; I saw other men in uniform take him down…” however, “recorded witness” is usually more accurate than an “eye witness”, who could be confused by what’s going on at the time, and his/her brain might not assemble all points to the puzzle immediately. An eyewitness, though, isn’t (usually) arrested for what he might have seen.

The camera is a non-participatory, unemotional documentarian in the purest form – it sees – without prejudice – what it is focused and framed to see. Events occurring outside its “screen” are not considered. Who’s to say that right next to that confrontation, something bigger is going on, something that could explain the scene that is being captured at the moment? Ah… but that’s a different idea for another time.

In the United States, public officials – sort of like “public domain footage”- are “owned” by the citizens of this country. We pay their salaries through our taxes, and so some of their own personal space rights are given up when they take public office. They know this, but as many a politician who’s gotten his fingers caught in the cookie jar know, in this new world of the ubiquitous camera, if you’re not doing anything wrong, you shouldn’t have to worry, right?

Least anyone thinks they can now record events without worry, they are wrong. There are lots of rules about public access and intent that can still land you in jail, if you’re not careful. Our “What’s Legal” columns by patent attorney Mark Levy explain a lot of the rules in easy-to-follow layman’s terms. Check it out. And remember, you should always try to stay on the legal side of the law when you’re recording in public places or anywhere, for that matter. The Center for Social Media has a great listing of code of practices in Fair Use, check it out.

In the field of documentary it’s not uncommon to have to use copyrighted works such as photographs, music, historical footage and artwork. Copyright laws can spell serious problems for your documentary if not followed properly. Many amateur documentarians will simply turn a blind eye to copyright laws which results in legal consequences if they sell or show their documentary to anyone (this includes posting to YouTube and/or other video-sharing sites). Other documentarians will claim the copyrighted item falls under fair use. However, the fair use exception isn’t always as black and white as one would hope. One way to avoid copyright legalities altogether is to use material that is in the public domain.

The public domain is a collection of work that isn’t owned by anyone, therefore free to use by everyone and without requiring special permission. In the United States, there are many different factors that determine when a copyrighted work enters the public domain:

• Anything published before 1923 is in the public domain.
• If the work was published between 1923 and 1963 without a copyright notice it is now in the public domain.
• If the work was published between 1923 and 1963 with a copyright notice, but the copyright was never renewed, it is in the public domain.
• If the creator decides not to obtain copyright, but rather contribute a work specifically for the public domain.

Anything published before 1923 is safe to use, however, be careful that the work you are using is, indeed, the original work created before 1923. For example, the score to Tchaikovsky’s Nutcracker Suite would be in the public domain. But, if you are using a modern recording of the song, it is considered a new work and, therefore, possibly protected under copyright.

By adhering to fair use and copyright laws you will be able to avoid legal catastrophes down the road. It may seem like a hassle to track down permission to use copyrighted material or to dig through public domain files in search of something usable, but the extra effort to obtain legal clearance will be well worth it in the end.

For more information on Fair Use and Copyright laws check out What’s Legal: Producer’s Rights

Interested in more tips on Documentary Production? Sign up for Videomaker’s free Documentary Course. This free tip series is designed to help you improve your video production skills, fast. Learn More.

Net neutrality has been a topic of heated debate for years. Should the Internet be network neutral, and what does that even mean?

Basically, network neutrality is the principle that all content providers are given equal access to Internet users. Likewise, Internet users ability to see content is not restricted based on which sites Internet Service Providers (ISP) deem inappropriate.

Recently, discussions regarding net neutrality have gained momentum due to a flurry of rumors that Google and Verizon were not only holding top secret meetings in their underground lairs, but had evil plans to take over the internet in an attempt at worldwide web domination. As we all know, rumors tend to get out of hand from time-to-time, but there is some truth behind the buzz.

According to a Google Public Policy Blog, posted by Alan Davidson, Google director of public policy and Tom Tauke, Verizon executive vice president of public affairs, policy, and communications, the two companies have been discussing net neutrality for some time. As a result, they have drafted a proposal concerning the topic, which “takes the form of a suggested legislative framework for consideration by lawmakers.”

Though Google’s blog is meant to clear the air of rumors and assure the public that nothing “evil” is afoot, it has stirred up additional concern for the Internet’s future. Worries are mainly due to vague statements that some say open the possibility for a tiered Internet service; the collapse of net neutrality.  In other words, companies would have to pay extra for preferred access to the ISP’s customers. If a company wants faster load times for their site’s content, they would be required to pay more money. Those who refuse or are unable to pay the higher price will not have the luxury of reaching their audience as quickly, or at all (in extreme cases of net neutrality collapse).

While a non-neutral Internet may have it benefits, it’s not so great for the independent video producers who rely on the Internet as a means of video distribution and promotion, while already pinching pennies to do what they love. It’s hard to say how new laws will affect the Internet in the future. One can only hope that the lawmakers view net neutrality as an important aspect of the Internet’s continued growth and success, as well as an appropriate venue for sharing one’s art and freedom of expression as equally as the next guy.