Five Questions to Ask When Deciding Whether Borrowing a Video Clip is Fair Use.

POSTED ON May 1, 2020 / IN FWRV Legal


Neil J. Rosini

Whether you are a production company or a homebound auteur making videos from the comfort of your couch, you may be tempted to enhance your documentary or other non-fiction production with clips from others’ productions. To do that within the law, it’s usually necessary to obtain a license from the copyright owner or else rely on Fair Use. If there is no license and Fair Use does not apply, then including the clip may result in copyright infringement and legal liability.

Under the U.S. Copyright Act, Fair Use allows producers to borrow from third party copyrighted works without permission and without payment provided that a set of legal standards is satisfied. Commercial exploitation (including advertising-supported use) is given more scrutiny than educational, journalistic, and non-commercial uses, which have a limited advantage but still must conform to the rules. Parody (that is, making fun of the borrowed work) occupies a special niche favored by Fair Use, provided that the borrowing is not excessive.

Because the particulars of Fair Use standards and the ways to apply them do not yield black and white guidelines and depend on individual facts and circumstances, deciding whether or not to rely on Fair Use instead of licensing a clip is best viewed as an assessment of risk. The scale of risk begins positively with “certainly a fair use” and ends with “not a chance.”

How can non-fiction content producers who wish to use others’ copyrighted clips on a Fair Use basis push their borrowings toward the positive end of the scale? The best way to begin is to ask five questions:

  1. Why precisely is this clip being used?

Be as rigorous as possible in identifying the purpose of using a clip. The more limited the identified purpose, the more likely Fair Use standards will be satisfied. And in the finished production, the rigorously- stated purpose you intend should be apparent from the context in which the borrowed clip appears. For example, if you intend to convey that a television clip displays the geniality of the program’s host then accompany it with commentary making that point..

  1. Is the function of the clip in your production different from the purpose of the original work?

If so, Fair Use will be much easier to establish. This is sometimes referred to as the “transformative test.” For example, if the clip comes from a news report that documents an event, it would not be transformative to borrow the clip in order to report concurrently the same event. A different purpose would be served, however, if the clip is used to show that the event was the subject of news coverage in the past; or that a particular public official was involved in the event; or as part of a historical sequence (e.g., to show how cultural attitudes changed over time); or to support a new argument or thesis.

  1. What’s the minimum you need to borrow to satisfy the limited purpose you’ve identified for using the clip in your production?

The less taken the better. This is not only a quantitative test (measured in the number of seconds borrowed) but also a qualitative test (don’t take the best part of someone else’s work if it is not essential to your purpose). For example, to establish that a particular actor appeared in a film, you don’t need to borrow an entire scene or the best joke or the most famous dialogue; you probably don’t even need the audio. You will be tempted to borrow more than you absolutely need in order to make your production more enjoyable. Resist that temptation.

  1. Are you nesting the clip in a context of commentary or criticism?

If yes, then your use is more likely to be transformative. Criticism and commentary about social, political and cultural subjects might be the clearest categories of transformative use. Show a short clip and comment on or criticize it either before or after. Even easier to defend: show a short clip while running audio commentary or criticism over the clip. Don’t use a clip merely to supply a background visual as if it were B-roll.

  1. Does the borrowed clip in your production appear principally for entertainment value?

If the clip in your production does more to entertain your audience than it contributes to making a point, that cuts against Fair Use. Also, don’t use borrowed material simply for creative flourishes or to take advantage of someone else’s distinctive editing. You’ll need to supply your own entertainment value if you don’t choose to license it.

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