What’s Fair Use?

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This question was sent to me.  It is asked a lot, so I thought it would be a good thread for discussion here in the Forums.

“I just Googled the film “White Like Me” (I think many have shown it).  I found that the entire film is on YouTube and begins with a statement onscreen that says:

FAIR USE NOTICE:  “The use of the following media is protected by the Fair Use Clause of the U.S. Copyright Act of 1976, which allows for the rebroadcast of copyrighted materials for the purpose of commentary, criticism, and education.”

Does this mean there is no necessity to obtain screening rights?  That’s what it sounds like to me.  I would think some communication should be made to the Producers/Directors that we hope to show it.”

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This is a good question, and one that’s asked often.

I know only a little about copyright law, but the topic is an important one and is on the agenda for a Meaningful Movies workshop at some point in the near future.

As I understand it, Fair Use is a somewhat ambiguous concept that lets one use a portion of a work for commentary/criticism or for parody.  I believe that those who wrote the law intended this to remain open to interpretation.

Here’s the law with the uses spelled out: https://www.law.cornell.edu/uscode/text/17/107

Again as I understand it, one of the biggest ambiguities is the “amount” of the “work” used that would fall inside or outside of the “Fair Use” realm.  i.e., would it be OK to show all of “White Like Me”?  or just a part of it as an illustration or to emphasize a point?  Showing the entire film, particularly as the feature film for an evening, seems to me like it would fall outside of Fair Use intent.

BTW, whether or not we charge, or ask for donations, or show for free has little bearing on copyright infringement;  Although it may impact the copyright holder’s motivation for coming after you.

Much of copyright law (again from my naïve perspective) seems to be based on interpretation through precedence set in the courts. The consequences resulting are a lot of grey areas.  It would be beneficial for us as a group (maybe a committee) to carefully think through a few pointed questions and relevant examples in preparation for a copyright attorney at our Copyright Workshop.

Regarding YouTube videos (+ Vimeo and others):  Because a piece is available on YouTube for free viewing, does not mean that it doesn’t fall under copyright law.  Some owners may have no problem with use of their materials, but you have no way of knowing this unless they specifically state this or you secure permission from them.  Again, a copyright attorney may see this otherwise.

A few thoughts on “White Like Me” specifically:  The Media Education Foundation is a great group of folks, and non-profit doing their heartwork.  They produce much of their own material, although because of the economy, over the last few years they’ve begun to distribute other filmmakers’ work.  We have an agreement with them that if we purchase screening rights on (certain) films, they will allow others in our network (and actually beyond) to screen for no additional fee.  This is the only filmmaker/distributor so far that we know of that offers this.  “White Like Me” is one we purchased to screen awhile back, and is available or you to screen as well (and there are many other films by MEF in the MMP film library).  I didn’t speak to West Seattle specifically regarding their screening, but I suspect they purchased their own copy (the cost is very modest).

The Fair Use Statement on the screen  at the beginning of “White Like Me” I believe is primarily to protect MEF regarding the materials THEY have used in the film under what they consider to be within the parameters of Fair Use, and does not address our use of the film.

Disclaimer: While being a copyright attorney might be fun (…maybe for a day), I am not one and everything here is just my opinion, …and maybe even speculation, so be cautious.

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If anyone is interested in looking further into this, I’d recommend that we form a task force to figure out how we might as a network better educate ourselves on copyright issues.

As a network, we are beginning to be acknowledged as a legitimate venue within the film industry, primarily because of our stance in supporting independent film and filmmakers.  As our network grows and we begin to work more closely together, I think it’s important that we try to minimize potential risks that might impact the work that the all rest of us are doing.

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General Definition: (from Stanford U. Libraries):

“In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general rules and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.”  – See more at: http://fairuse.stanford.edu/overview/fair-use/what-is-fair-use/

 

And here’s the actual law re: Fair Use: http://www.copyright.gov/title17/92chap1.html#107

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