Howdy! I'm in post on a doc and we are using some photos and video footage under "fair use" (clips from YouTube, news, newspaper headlines, etc.) along with items in public domain. What is the proper way to identify footage we are using on screen and in the credits? I'm familiar with how to handle l...
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Doug Nelson When you post on YouTube, you give Google/YouTube a license based on their user agreement. They get to show your content or not, as they please, and they will pay you for that in advertisi...
Expand commentDoug Nelson When you post on YouTube, you give Google/YouTube a license based on their user agreement. They get to show your content or not, as they please, and they will pay you for that in advertising split, again based on their terms. You possibly lose the practical ability to enforce your copyright (because it can be downloaded from YouTube despite their efforts every few months to stop that) but you still own the copyright. So if it shows up in a documentary who didn't get your consent, you can sue. "Royalty Free" music is not free or in PD - you usually buy a one-time license and don't have to pay them a royalty or report usage to performing arts societies like ASCAP or BMI. Some people will permit you to use it under other terms (ie. give me credit, certain "Creative Commons" licenses, etc), but if those terms are breached, you have breached copyright and are risking all the penalties therefore. "Fair Use" is confined to purposes like criticism, comment, news reporting, education in classrooms, scholarship, or research, and is highly qualified within those categories. Items in a documentary which by its nature will end up being sold or streamed where someone pays for it generally don't qualify for fair use. But it does depend on the specific use of each item in the documentary and the nature of the documentary itself. They simply need to confine themselves to the items they can get consent to use. Anything else is dangerous. There are legitimate reasons for the "fair use" exception; wanting to lower your budget and not pay for a license is not one of them.
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It's true that fair use is a defense to copyright infringement and that posting work on YouTube does not put that work into the public domain. But there is ample precedent for fair use in the document...
Expand commentIt's true that fair use is a defense to copyright infringement and that posting work on YouTube does not put that work into the public domain. But there is ample precedent for fair use in the documentary context. The thing to remember is that whether fair use is likely to provide a defense is an extremely fact-specific question. Unlike with licensing, each proposed fair use must be evaluated carefully. But sometimes there is no other way to make the film. See, for example, the documentary Los Angeles Plays Itself (https://www.imdb.com/title/tt0379357/). It consists almost entirely of clips, most of which were not licensed. An experienced attorney can evaluate and often assist in adding context that can support fair use without harming the filmmaker's vision. Since a legal opinion will be needed to get E+O insurance for any film that relies even in part on fair use, it's certainly not trying to "stir up business" to recommend working with production counsel.
The clips we are using from archived news stories and videos people have posted on YouTube help support the argument we’re making in our doc and from everything I’ve been reading and watching online (and what one of our producers with a law degree had to say), it falls under fair use.
Just to clarify- I’m not posting anything on YouTube…
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Shadow - it's become way too complicated for a small time country boy like me so I'm returning to retirement. I just don't need the aggravation. C ya'll.