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.

Let’s be clear: copyright law is good, in general. At its core, the idea is very noble: to allow anyone to create something original and give it protection from being copied by anyone else. In practice, though, paranoia has ruined things for everyone else. A post from Videopia (thanks, Eric) titled “100 Years of Copyright Hysteria” and the associated link to Ars Technica titled “100 years of Big Content fearing technology–in its own words” are remarkable in that the nice (but paranoid) people from Hollywood and elsewhere have been fighting for a remarkably long time about copyright law.

Can you believe that John Philip Sousa, author of many a march, actually wrote a magazine article complaining about the uptake of player pianos and phonographs? And who can forget Jack Valenti’s remarkably pompous quote comparing the VCR to the Boston Strangler? (And, of course, if it wasn’t for the VCR, we at Videomaker probably wouldn’t be here; it was the miniaturization of the VCR and video cameras that led to this crazy little video revolution and the democratization of television.) Or the jaw-droppingly arrogant quote of Jamie Kellner, then-CEO of Turner, whose distaste of DVR users led him to classify anyone who even just has to use the bathroom during the commercials, as thieves?! And don’t get me started on the industry’s fights against DAT and the Diamond Rio, the granddaddy of all personal media players.

So, what will be the next innovative technology that the industry will be banding against? Why do we have to go through this every time something new comes out? Ugh. Unless this is the call to action for independent media (and really, I can’t remember the last time knowing what studio or record label put out a piece of media I was going to consume was actually a useful piece of information.)