Using short clips in educational video – Entertainment Law Asked & Answered

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A fellow attorney wrote in with a question about using short film clips…

Hi, I am Gordon Firemark and this is asked and answered, where I take your entertainment law questions so you can take your career and business in entertainment to the next level. Stick Around for my answer.

OK, here's what this fellow lawyer asked:

I am in the legal field, a Barrister in England and Wales, and I am now living in the USA.

I wanted to create a series on English Law on YouTube and use clips from different movies for some of my examples. The clips would not be more than 15 to 30 seconds most. I will also intend not to use the heart of a film. I may use 7-10 different clips from 7-10 different movies or videos, small 15-30 second portions. In total I wish to say it would not be the majority of the work. This would be strictly for education and non-commercial purposes. I would only use the video as I would transform the video with legal examples. I am also using my own sound.

OK, so here what I told this fellow.

First… the “best practice” is to obtain licenses.

Sure, it’s possible that such short clips would be found to be fair use, and therefore non-infringing, I think there’s a reasonably high degree of risk that someone will object, and file DMCA Takedown notices, (at least), and possibly sue you. And lawsuits are never any fun… They're just colossally expensive.

That said, there has been recent ruling in Lenz v. Universal that tells us copyright owners are required to consider fair use before issuing DMCA notices… But who knows whether that will survive further appeal… And that's in progress right now as I record this in November of 2015.

So, let's quickly recap the four fair use factors.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered are:

• 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The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
But even if you’re in Fair Use Territory, though, remember… if you get too many takedown requests, your Video hosting provider (YouTube or whatever) will shut down your account, and it’s very difficult to get reinstated. It can be a real black mark.

So… my usual advice is license the footage. Such short clips probably won’t cost much. You might even get ‘gratis’ permissions, if you ask nicely and explain what you're working on..

Now I did a video a while back in which I explain how Fair Use works… And it's at
My video about Fair Use is at: http://firemark.com/fairuseinbrief

If you have a question you'd like to see answered here on Asked And Answered, head over to http://firemark.com/questions and drop me a line.

See you next time.

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