Fair Use Question
Been a while since I posted here.
Working on a feature-length doc, which is nearing completion. There are a number of newspaper headlines that I am looking to use as b-roll at certain sections of the film. I have been in contact with these newspapers regarding permission to use images of the headlines. The expense that I am foreseeing in rights fees will far exceed the total cost of the production thus far. One newspaper in particular is looking for $250.00/article. I think that's unreasonable. These articles date back to the 1970s and would otherwise be collecting dust in their archives. Anyway, I've had multiple peers ask me why I am seeking permission, and that the use of such headlines would fall under fair use law. However,even the US government's definition of fair use law is murky. In a nutshell, if I am referencing an historical event in my film, and the headline of a related newspaper article is shown on screen to illustrate that the event was newsworthy, does that use of the article qualify as fair use? I'd love to know how those of you who have dealt with a similar situation in the past. Any advice is greatly appreciated. And yes I know, I need to talk to a lawyer ($$$$$).
My apologies. I just realized I already asked this question back in February. No need to respond if you're annoyed :)
A work-around could be to put up a generic-looking fake newspaper front page, blurred-out, and then float "quotes" of the headline in a similar-looking font, which is how they get around the problem when making political attack ads - but if you're showing the actual newspaper page, you open yourself up to more issues.
I know you already know this, Aaron, but for younger people following behind you:
"Fair Use" is not like a magic license to go do whatever you want; rather, it's your last line of defense, once someone with an axe to grind takes you to court. You admit you used the image or footage but your defense before the judge is that your specific way of using it falls inside the protections of Fair Use, be that news or scholarly commentary or even parody. Since you are losing money the whole time you are defensing yourself in in the long, drawn-out lawsuit process, even if you're in the right, you may not be able to afford to defend that righteousness. Corporations and people with deep pockets know that, and use the danger of that to intimidate film makers and journalists into self-censorship. If you can find a really clear example in the Fair Use law that obviously applies to your footage, show that to the complainer and then counter-offer to use something they provide you, if it would make the suit go away. When they see they can't just roll you by intimidation, they might parley. But as a creative person, you can usually always find another way to convey the ideas and information, no matter how they try to frustrate you.
The UNIVERSAL safe answer to "Fair Use" questions is this...
No. you can't.
Even if you think you should be able to - you can't.
And if you can't afford to hire a properly qualified IP attorney to prove that you can - then you CERTAINLY can not.
99.99% of the time the above information is probably going to be accurate.
If you're in the other 1/100th of a percent - you already know it - and know precisely why.
Hope that helps.
Know someone who teaches video editing in elementary school, high school or college? Tell them to check out http://www.StartEditingNow.com - video editing curriculum complete with licensed practice content.
Maybe it falls under Fair Use, maybe it doesn't. Fair Use is very narrowly defined and context is everything. I cut a documentary on the late comedian Lenny Bruce and dealing with rights, licensing, Fair Use, etc., was a small nightmare. We had an IP attorney review and sign off on the movie (after some editing of things the lawyer didn't think would fall under Fair Use) so we could get E&O insurance for distribution.
Honestly, if you want you can leave it in now and then have a lawyer review it once you lock edit. Just have a backup plan incase the lawyer flags it.
BTW, I am not an attorney and my opinions should not be construed as legal advice.
[Aaron Cadieux] "$250.00/article. I think that's unreasonable."
Wait till you see the attorney's fee. Now THAT will be unreasonable!
Pay up or cut it out. DUH!
The definition of Fair Use isn't murky at all. There are only four points, laid out in layman's terms in a few very short paragraphs of a court finding, written in layman's terms, that you can read with a couple of clicks. Shouldn't take you five minutes to find and read the entire thing.
The murky part is that people don't want to pay for material that other people own. LOL
Not to pick on you personally, but you exactly accurately summarized a hundred threads on this issue in this forum: "These articles date back to the 1970s and would otherwise be collecting dust in their archives."
The thing is: copyright is 75 years, or the life of the author plus 50 years. Since, for legal purposes, the author of the headline is the newspaper itself...and well, you can do the math.
It's theirs. Pay for it, or don't use it.
OR, as suggested elsewhere on the thread, make something up, using completely different words. Unless you need a picture of a specific headline in a specific newspaper, bust out your legally paid-for copy of Photoshop and get to work. I've done this myself. It's harder than it sounds, but it's not rocket science either.
Step One: WRITE A DIFFERENT HEADLINE, then mock in DIFFERENT TEXT than what was originally used, keeping in mind that you want to avoid plagiarism, which potentially causes even MORE trouble than infringement.
One of the other hard parts is that type wasn't being set by computers in the 70s. Not like it was entirely by hand of course, but it's so much harder than it sounds to recreate that organic feel with a computer. Again, not rocket science, but I guarantee that after you've done this twice, you'll do whatever it takes to find the money to avoid doing it the third. LOL
But, as I replied to you in February,
Once you've asked for permission and they come back with a price, fair use is out the window. It's a commercial transaction that you're either going to participate in, or knowingly dodge.
The whole thread is full of really good advice, almost all of it better than mine. LOL
[Mark Raudonis] "Wait till you see the attorney's fee. Now THAT will be unreasonable!"
The bad news is that the attorney's fee will probably be *perfectly* reasonable. LOL The charge to defend a Fair Use case is astronomical, even for a small case. As the law states, the burden of proof is on YOU to prove that you didn't infringe.
(The law also stipulates that you're on the hook for THEIR court costs too.)
I really need to draw your attention to a post I made on another thread in April. I did some actual research(!!!) to find the current state of Fair Use in the courts, and I was shocked. I knew its scope had been narrowing, but outside a classroom, for all practical purposes, it barely exists anymore. There are entire books about the collapse of Fair Use, and this post includes links to some of the best of them.
Please check it out, not because I'm a genius who needs to be re-read on a regular basis...but because these authors are some of IP's greatest experts who've written crisply and clearly, in language aimed at creative people, not lawyers, about how Fair Use is actually working in practice, right now.
It was completely different when we started in 2001. I'd like to think we've been able to do a thing or two more, but frankly, NOW, I'd be okay if the COW's greatest legacy was to steer people clear of trying to fall back on Fair Use.
[Tim Wilson] "The definition of Fair Use isn't murky at all. There are only four points, laid out in layman's terms in a few very short paragraphs of a court finding, written in layman's terms, that you can read with a couple of clicks. Shouldn't take you five minutes to find and read the entire thing."
The letters on the paper might be black and white but the law itself is a 4 point conditional test which is inherently open to interpretation.
In my experience working on "Looking for Lenny", the previously mentioned doc I edited (which got E&O and became available on cable VOD as well as all major streaming outlets), context is king. We tried like hell to license everything and/or use as much public domain material as possible but with a historical doc (it was about the late comedian Lenny Bruce and his impact on standup and free speech) there are some half-century pieces of media w/o clear cut ownership tied to them. In some instances the lawyer was like "Nope, can't use that" and in other instances we did get the okay to use a a piece of media because it illustrated a specific point that our documentary was commenting on.
Coming back full circle though, the OP needs to talk to an IP attorney and should absolutely not just use other people's IP and hope for the best.