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Fair Use Misconceptions Can Expose Video to Copyright Violations

Fair Use Misconceptions Can Expose Video to Copyright Violations

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.

January 26th, 2012