[Rumori] Academic use of film clips question (Tim Maloney)

[Ken Freedman]

One thing to remember about Fair Use is that it is a legal defense, 
not a law or a statute that give you permission before the fact. As 
such, there is no clear written guideline to go by as to what legally 
constitutes Fair Use. There is case law, but that is going 
to vary wildly from judge to judge. Claiming Fair Use only occurs when 
you have been accused of copyright infringement, and it is a little 
like saying "guilty with an explanation" in traffic court. You will be 
at the mercy of the presiding judge. 

-ken


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Ken Freedman			ken at wfmu.org
WFMU				(201) 521-1416 ext 225
PO Box 2011			http://www.wfmu.org
Jersey City, NJ 07303-2011	http://blog.wfmu.org
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> From: Tim Maloney <nakedrabbit at earthlink.net>
> Subject: [Rumori] Academic use of film clips question
> 
> Here's a specific problem I've encountered lately.  I wonder if  
> anyone here has any knowledge/expertise in the matter.  I had a  
> lively discussion with a colleague about this and I think I need new  
> perspectives.
> 
> I am a film instructor, so that's where this hypothetical case  
> begins.  I'm wondering what would happen if I published an academic  
> work - i.e., a book, which used film stills.  Technically, under U.S.  
> Copyright Law (and I am in the U.S.) this may be considered Fair  
> Use.  But I am publishing the book, and a publisher, academic or  
> otherwise, is profiting from the book.  Is Fair Use still invoked?
> 
> I know that many publishers clear those rights for use, but this may  
> be unnecessary on the part of the publisher, or a good way to get  
> high quality reproducible materials, by working with the studios in  
> question.
> 
> So let's make it more complicated.  Let's say I want to include with  
> my book a DVD full of film clips that demonstrate the various topics  
> I discuss in the book.  If I show these in my class it is considered  
> Fair Use.  I do not have to pay anyone to exhibit films in this  
> manner.  What about on a DVD?  That I publish/duplicate/distribute?   
> I realize that if it can be proven that I overcame copyright  
> restrictions with certain software (DeCSS, for example) to get these  
> clips then I am immediately in trouble with the DMCA.  But if I  
> somehow used legitimate means?  (Which means I can only guess about,  
> perhaps involving some generation-loss scheme of recording the clips  
> right out of a DVD player, etc?)  Does Fair Use come into play?  Or  
> am I a pirate?
> 
> We could all guess that an American Media Company of one kind or  
> another would not LIKE such use, and would characterize it as  
> piracy.  We can all speculate that they would sue for such uses.  But  
> what would the likely legal outcome be?  Would I be in the clear,  
> only subject to the humiliation and finance-depriving processes by  
> which the Big Media Companies would destroy me?  I won't tell you  
> what side of this argument I am on, but I am interested in responses  
> to it.
>