Indie Filmmaker’s journal: Part Three.
As we learned more about copyrights and trademarks. We looked around as we filmed, doh, almost every thing is property owned and controlled. Making a copy of it, even not intentionally copying it could be copyright infringement. What about Fair Use?
“We’re almost ready to do the interview. Sound check good. Could you turn off your CD player.”
“Why. Can’t you hear me?”
“Hear you fine. You are playing Zappa’s “Apostrophe” album. If we tape his doing “Stink Foot” as background to your interview, we could have a copyright problem.”
“Oh, Okay. Stink Foot is Zappa’s best.”
“Yeah I know. One more thing. Could you move to your right a couple of steps. We need to get the “Big Lebowski” movie poster out of the frame.”
“Okay, moving to the right.”
Fair Use is an important limit on copyright owner’s rights. Deciding if a copyright protected work is fair to copy or film is more artful than a science. No clear and agreed upon guidelines. There are four factors to consider.
1. What is the purpose of the use?
Is the new work a simple copy of the original? If so, it is not likely to be fair use.
Is the new work something new beyond the original? Transform it in someway? If it is altered significantly, used for a different purpose, appeals to a different audience, it is may be considered fair use.
Is the use for nonprofit or educational purposes? Education and nonprofit uses make fair use somewhat likely, but not automatic.
2. Nature of the copyrighted work.
Is it published or unpublished? Unpublished work is less likely to be fair use.
Is it out of print? Out of print make fair use chances better.
Is the work factual or artistic? The more a work tends artistic, the less likely it will be considered fair use.
3. Amount and importance of copyright work used.
The more used (copied) the less likely it will be called fair use.
Is the amount used reasonable? 50% is not likely to be called fair use.
Will what is used have potential to adversely affect the copyright owner’s economic gain? If the heart or essence of a work is used it likely will not be called fair use. A hypothetical like “potential to adversely affect” is true music to those who troll for new suits and/or at least a percentage of a suit.
4. The effect of use on potential market for the copyright work.
The more new work differs from the copyright work the less likely it will be called an infringement.
If the audience is the same then it might be called infringement.
Is the new work have something original? If it does, it might be considered fair use.
When is getting Permission a very very good idea?
When materials are for commercial purposes.
When materials are used repeatedly, as in, broadcast TV or posting on the internet.
When the copyright work is used in its entirety.
Unfortunately, to decide if a use is or is not fair use, all four factors need to be considered. Columbia University has a nifty Fair Use Check list. It is for professors and such, but easily adaptable to an indie filmmaker’s needs.
The Documentary Filmmakers' Statement of best practices in Fair Use has an interesting take on the Fair Use issue and is work a read. The say that fair use may be invoked when the value to the public of what the documentary film is saying outweighs the cost to the private owner of the copyright.
Thinking about the artist interview from Fair Use, I felt good about turning off Zappa’s “Apostrophe”. “Stink Foot” is pure creative artistic work (who am I to judge?) and hearing it, maybe all of it, as background would seem to need permission. The “Big Lebowski” movie poster could go one way or the other on fair use. My solution was to move the frame of the interview enough to include the colorful edge but no specific identifying graphics or text.
There are a host of primarily University Library websites with great information on Copyrights, permissions, fair use.
Stanford University ; United States Copyright Office
University of California ; Columbia University
University of Maryland And many more.
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