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Making a color reel, anyone know how fair use applies?

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Danny Thompson
Making a color reel, anyone know how fair use applies?
on May 8, 2014 at 9:16:59 pm

I've been working at a studio as a colorist. I've received 10 screen credits in that time. Of those 10, 5 are wide-release and have a legally-obtainable DVD or streaming availability.

What are my rights when it comes to putting clips from these in my reel? I was planning on putting them over music, no audio from the clips, no more than 15 seconds of each feature of shots that are not sequential within the feature. At least 30% of the shots will have text superimposed over them. They will be at vimeo quality.

Studio - eMac G4, 256mb ram, Final Cut DV
Mobile - IBM R50, 1024mb ram, 80gb Hitachi Travelstar ATA133 7200rpm hard drive


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Mel Matsuoka
Re: Making a color reel, anyone know how fair use applies?
on May 9, 2014 at 4:33:36 am
Last Edited By Mel Matsuoka on May 9, 2014 at 4:39:16 am

IANAL, so I'd advise talking to an actual "L" if you're genuinely concerned about this…

That said, the legality of ripping a commercial, CSS-encrypted DVD is not really a "Fair Use" issue, but a DMCA issue. I suppose you can make a case that your particular usage of the DVDs in question constitutes legitimate "Fair Use" (although "Fair Use" has an actual, legal definition that generally excludes use cases like yours, where direct or indirect commercial gain applies), but any Fair Use arguments are rendered moot by the DMCA, which actually makes it illegal to circumvent the encryption on a commercial DVD.

In other words, in the United States, you cannot exercise your "Fair Use" rights with a commercial DVD without violating Title I of the DMCA. A stupid, silly paradox, to be sure!

That said, you're probably more likely to win the MegaMillions Powerball lottery than you are actually having the Feds knock down your door and send you to Guantanamo, just because you ripped scenes from a DVD for your own demo reel…For whatever it's worth.


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Joseph Owens
Re: Making a color reel, anyone know how fair use applies?
on May 9, 2014 at 2:56:03 pm

[Mel Matsuoka] " you ripped scenes from a DVD for your own demo reel"

Or you could ask for permission from the producers. Sometimes they are flattered.

If there is a distribution deal in place where they might have to ask permission from the current window-holder, then that is another issue. Usually an exhibitor is happy to get some extra coverage and exposure if it promotes the work in a positive way. "I am proud of the achievement. Here, have a look!"

But there are also NDAs and the like to worry about, so as an employee of a post house, you may not be entirely aware of the service contract in place between the agreeing parties. "Fair Use" in a broad sense, usually only applies to news and documentary to cover incidental inclusion. its not for nothing that teams of roto workers are busy erasing commercial logos from everything that is being shot, and that a distributor will not touch anything that doesn't carry E&O insurance.

And its a constant bug in a number of people's bonnet that you can never be entirely sure what constitutes "your" work (substantial alteration) in a demo.

jPo

"I always pass on free advice -- its never of any use to me" Oscar Wilde.


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Sascha Haber
Re: Making a color reel, anyone know how fair use applies?
on May 9, 2014 at 7:47:57 am

What I do is to limit my usage of those clips to the content already used in trailers.
The problem is that you will either piss of your old boss or the people who paid to get the job done.
They both think they have more right to it because they handed over money.
But I never heard of anyone getting into legal trouble by using their own work in the appropriate form of a personal showreel.
I have been asked to take out one or two shots, so be it, but no studio will actually take legal actions against workers, word gets out and the place looks like a place to avoid.

A slice of color...

Resolve 10.1.4 - Smoke 2015
Colorist / VFX / Aerial footage nerd
http://vimeo.com/saschahaber


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Danny Thompson
Re: Making a color reel, anyone know how fair use applies?
on May 9, 2014 at 4:45:09 pm

My strategy, more or less. A lot of my work is up on youtube etc already.

Studio - eMac G4, 256mb ram, Final Cut DV
Mobile - IBM R50, 1024mb ram, 80gb Hitachi Travelstar ATA133 7200rpm hard drive


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Marc Wielage
Re: Making a color reel, anyone know how fair use applies?
on May 10, 2014 at 7:19:04 am

Legally, the studio can sue you if they really want to. YouTube and other sources can detect copyrighted material in some cases and delete it (or throw up a warning notice). What I think can be done is to use shot sections, re-edited, and with new background music. I see VFX artists and cinematographers do this kind of thing all the time. I also put an identifying "bug" in the lower left showing the name of the project and the DP and/or director to make it clear it's just a clip, and I keep each clip to under :30 seconds. I'd say that pretty much defines the nature of Fair Use, but it is open to interpretation.


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Mel Matsuoka
Re: Making a color reel, anyone know how fair use applies?
on May 10, 2014 at 9:58:09 am
Last Edited By Mel Matsuoka on May 10, 2014 at 9:59:47 am

[Marc Wielage] " I also put an identifying "bug" in the lower left showing the name of the project and the DP and/or director to make it clear it's just a clip, and I keep each clip to under :30 seconds. I'd say that pretty much defines the nature of Fair Use, but it is open to interpretation.
"



Sorry to be so pedantic, but this legally incorrect.

At least in the US, Fair Use (with a capital F and a capital U) is not a general, interpretive, moral or ethical concept. It has an actual legal definition in US Copyright Law. Just because the usage seems "fair" on logical and ethical grounds does not make it "Fair Use", and the idea that excerpting :30 or less of the original work constitutes non-infringing use is a myth. There is absolutely no such exemption for "excerpts" in US Copyright Law. In other words, using even 3 seconds of a copyrighted work (even with attribution) is technically illegal if the usage does not fall within the "four-factor" considerations of the Fair Use doctrine.

Don't get me wrong, I think that you're morally in the clear by doing what Danny is asking to do. It's the post-production equivalent of jaywalking. But it's still technically not legal, and we shouldn't pretend that it's "fair use" just because it seems like it is.



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Marc Wielage
Re: Making a color reel, anyone know how fair use applies?
on May 10, 2014 at 10:14:43 am

I disagree, and you are being pedantic.


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Mel Matsuoka
Re: Making a color reel, anyone know how fair use applies?
on May 10, 2014 at 12:01:55 pm

[Marc Wielage] "I disagree, and you are being pedantic."

I dont disagree with you that I'm being pedantic. But it's really a bummer that you "disagree" about facts that are, well...facts.

You can't just make up your own definitions of what Fair Use is, just because it's convenient. The use case which you described (short, attributed excerpts of commercial media), and which you thought "pretty much defines the nature of Fair Use" is only "fair" from a non-legal, ethical standpoint. Only a bunghole of immense proportions would consider your actions to be "wrong" or worthy of moral judgement.

But that still doesn't make it "Fair Use", in the eyes of US Copyright Law.

Danny specifically voiced concerns about his Fair Use "rights" in constructing a demo reel using copyrighted material, and that is the question which should be addressed. I'm sorry if you took my correction of your misinterpretation of what "Fair Use" is as some kind of personal attack of your character or intellect. I certainly did not mean it as such. I have been following copyright & Fair Use issues as a bizarre hobby of mine for well over a decade, so I have a strong desire to correct (or at least be annoyed by) misinformation that is often given about these topics, because for content-creators like us, they are important topics to understand and not be wrong about...not unlike your (and my) disdain for people who throw around the term "LUT" without knowing what they really are.



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Marc Wielage
Re: Making a color reel, anyone know how fair use applies?
on May 10, 2014 at 9:39:52 pm

Show me some case law to support your opinion.


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Mel Matsuoka
Re: Making a color reel, anyone know how fair use applies?
on May 12, 2014 at 12:20:44 am
Last Edited By Mel Matsuoka on May 12, 2014 at 12:25:57 am

[Marc Wielage] "Show me some case law to support your opinion."

It's stated explicitly in Section 107 of the Copyright Law of The United States of America (Title 17 of the United States Code):

http://www.copyright.gov/title17/92chap1.html#107

As is the case with nearly all laws, while there is undoubtedly room for "interpretation" depending on the specific case, the Fair Use doctrine is very clear about its intent: To protect expressions of criticism, archival requirements, analysis, parody, news reporting and/or any other commentary on the copyrighted work. It also goes out of its way to make clear that Fair Use exemptions only applies to cases where "direct or indirect commercial advantage" is not the intended outcome of the usage of the copyrighted work. Demo Reels clearly do not fall within the parameters of these exemptions.

But as I (and others here) have already and repeatedly asserted, unless you're breaking an NDA or other legally binding agreement you've already made stating that you won't use the work in question for your own promotional purposes, then you effectively have nothing to worry about. The main practical concerns you have at that point is from a moral, ethical, professional and political standpoint. Although it still doesn't negate the fact that the action is still technically illegal.

So while it may be a "pedantic" argument in the context of making a demo-reel, it's still an important fact that needs to be understood by all content creators, lest you find yourself unintentionally breaking the law by using material in a project that seems like it should be "fair" use (with a lowercase "f" and "u") .

You know the old saying, "Ignorance of the law is not an excuse?"


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Marc Wielage
Re: Making a color reel, anyone know how fair use applies?
on May 12, 2014 at 12:53:47 am

[Mel Matsuoka] "It's stated explicitly in Section 107 of the Copyright Law of The United States of America (Title 17 of the United States Code):"
This is not case law. I had to testify three times in Federal Court during the Sony/Universal Betamax copyright case in the late 1970s and early 1980s, and I covered the case extensively for several magazines during that period, so I'm pretty familiar with Title 17 of the U.S. code. Judge Warren Ferguson's original ruling in that case was actually fairly narrow.

But again, I don't know of anybody who's been sued over a short demo reel in the last 10 years. I can imagine cases where there would be a phone call or a letter requesting that the clip be taken down, and YouTube frequently gets take-down letters from copyright holders.

Actors in particular are known for using short segments of movies and TV shows. As long as it's not for public distribution, particularly for profit, I don't see an issue in the real world for brief clips. In fact, I suspect the studios would be loathe to actually bring a case like this to court, for fear that a decision against them would actually become case law. But nobody I know has the time and deep pockets needed to bring a case like this to trial. That's why I say: there is no case law to interpret the statute. Only a judge can really say where the boundaries are.


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Mel Matsuoka
Re: Making a color reel, anyone know how fair use applies?
on May 12, 2014 at 1:16:17 am

[Marc Wielage] "But again, I don't know of anybody who's been sued over a short demo reel in the last 10 years. I can imagine cases where there would be a phone call or a letter requesting that the clip be taken down, and YouTube frequently gets take-down letters from copyright holders."

Yes, you are absolutely right. And that's where this discussion became self-admittedly "pedantic", because my original response took issue with the idea that by lending on-screen attribution or limiting the length of the excerpt to :30 or less, that it somehow makes it "Fair Use". These are both very common misunderstandings of the Fair Use law, so I was specifically addressing and correcting those misunderstandings.

Granted, making a big issue about the specifics of Fair Use law in the context of an innocuous demo-reel might seem as douchey as someone taking a jaywalking person to task because they had an impending bout of explosive diarrhea, and the closest bathroom was across the street. But since Danny specifically asked about Fair Use rights, it seems appropriate to correct these common misconceptions, because a large majority of well-meaning people have these same misconceptions––the perpetuation of which has led to numerous urban legends about the nature of Copyright, even among otherwise well-enlightened people.


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Joseph Owens
Re: Making a color reel, anyone know how fair use applies?
on May 12, 2014 at 8:15:17 pm

[Mel Matsuoka] "as douchey as someone taking a jaywalking person to task because they had an impending bout of explosive diarrhea, and the closest bathroom was across the street."

You're not referencing "Bridesmaids", are you?

All of the above goes to show that we don't really have a Justice System; we have a "Legal System."

ASK. An ounce of something is worth ... err, something else, a pound? Is that sterling?

jPo

"I always pass on free advice -- its never of any use to me" Oscar Wilde.


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Danny Thompson
Re: Making a color reel, anyone know how fair use applies?
on May 11, 2014 at 7:31:15 pm

The "four points" are critical, but each is open to some interpretation and has a degree of flexibility, and I haven't even made the reel yet, so whether or not it's Fair Use yet is hazy.

My understanding is that these things are decided case-to-case by the courts, and the likelihood of a case over someone's reel ever getting within a mile of court house is zero.

But I am not a lawyer, just like yall.

Studio - eMac G4, 256mb ram, Final Cut DV
Mobile - IBM R50, 1024mb ram, 80gb Hitachi Travelstar ATA133 7200rpm hard drive


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Juan Salvo
Re: Making a color reel, anyone know how fair use applies?
on May 11, 2014 at 11:48:53 pm
Last Edited By Juan Salvo on May 12, 2014 at 3:42:33 am

Fair use doesn't apply to a reel. It only applies in situations where a party is informing the public (read news or press) not private marketing or promotional materials (read reels). So you're in no way covered by fair use. That's said, what's the worst that could happen? A client asks you to take out their shot? You lose a client over it? If you're willing to risk it, go for it. Or do them the courtesy of asking for permission. In all likelihood you'll never hear a peep about the matter, if you do, just take that shot out.

http://JuanSalvo.com
http://theColourSpace.com


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Marc Wielage
Re: Making a color reel, anyone know how fair use applies?
on May 12, 2014 at 12:27:19 am
Last Edited By Marc Wielage on May 12, 2014 at 12:55:20 am

I agree with Juan in that in the real-world, nobody is going to give a crap about a :20-second or :30-second clip. Go over to YouTube if you want to see real copyright infringement, where thousands of entire features and TV episodes are posted. The studios are extremely selective about what they chase down and what they let slide; I'm astonished at the whole features and TV shows that are up there, particularly when they're clearly done without permission.

A short demo reel of images isn't depriving the studio or copyright holder of any income, though I would be cautious about trademark use and music use. Again, anybody can sue you for any reason they want, but the question boils down to how much time and money they want to spend to go after you, and whether they could really show a monetary loss in court.

I'm reminded of the old adage: "better to beg for forgiveness than ask permission." This is one of those instances.


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