Fair Use
I do not want to use media that does not comply with the wishes of a copyright owner.
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Copyright Research
Initially, I made enquiries of a USA body that offers clarification on copyright. They don’t offer legal advice but did point me in the direction of a concept called Fair Use, as well as the YouTube terms and conditions adding that some film studios do already license some of their work for reuse.
Further research led me to the Center for Media & Social Impact which has a number of definitions for Fair Use for different situations.
The Fair Use Law
The underlying method for determining Fair Use is described in Section 107 of the U.S. Copyright Act: Limitations on exclusive rights: ‘Fair Use’ – –
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- The effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
All four factors must be considered and the overall result will usually lean toward or away from permissible fair use.
Factor 1: The Purpose & Character of the Use
The fair use statute itself describes criticism, comment and news reporting as permissible fair uses.
Factor 2: The Nature of the Copyrighted Work
Courts tend to give greater protection to creative works than they might do for nonfiction works.
Factor 3: The Amount or Substantiality of the Portion Used
- The more you use, the less likely you are within fair use.
- The ‘amount’ is usually relative to the length of the entire original
- The amount needed to serve a proper objective is considered
- Small amounts may be deemed excessive if they take the ‘heart of the work’.
- In some contexts (such as a critical comment or parody), copying an entire work may be acceptable, depending on how much is needed to achieve your purpose.
- A thumbnail or low-resolution version of an image is a lesser amount.
Factor 4: The Effect of the Use on the Potential Market For or Value of the Work
Reproductions of entire works (eg: videos) can make direct inroads on the potential markets for those works.
My interpretation of this is that is that embedding a trailer for a film or a copy of a poster does not reduce the market for the film and is more likely to increase its market.
YouTube Links
In addition to the Fair Use guidelines above, YouTube has terms and conditions that relate to the accessibility of the material that it hosts, including film trailers provided by studios.
4. General Use of the Service—Permissions and Restrictions
You agree not to distribute in any medium any part of the Service or the Content without YouTube’s prior written authorization unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).
6. Your Content and Conduct, Section C.
…You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service…
…You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display, publish, make available online or electronically transmit, and perform such Content as permitted through the functionality of the Service and under these Terms of Service…