Fair use of films in online video essays

'Is it legal', 'can I do this' type questions and discussions.
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Kammacher16
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Fair use of films in online video essays

Post by Kammacher16 » Mon Jan 09, 2017 2:09 pm

I'm thinking of making some video essays in which I analyse classic movies - stuff like Red Desert, Marketa Lazarova, Gertrud, etc. - more or less from beginning to end, with voice-over commentary, on-screen text from scholarly sources. I would only show clips that were necessary for the points I was trying to make, and would use still images instead where possible. The videos might well end up being longer than the films themselves.

My question is about fair use: would such a video be safe to upload to, say, YouTube or Vimeo, given that it would only be using the material for purposes of comment and analysis, or would there come a point where I was 'quoting' so much of the source that I would be violating fair use policy? I realise this might be a bit of a grey area, and that it might depend on who the rightsholder was for the particular film... But if anyone can offer some thoughts and advice, I'd be very grateful!

Apologies if this exact question has been asked before on this forum - I did a quick search but couldn't find anything that fully answered my question.

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AndyJ
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Post by AndyJ » Mon Jan 09, 2017 5:24 pm

Hi Kammacher,

You don't say in which country you are based, and this could have a bearing on the legal position, so I'll try and cover the differences between the UK and the USA. If you live somewhere else you may need to check locally on the legal situation, although if you live within the EU, the chances are that something similar to the UK will apply.

USA. You used the words 'fair use' and this is the main exception to copyright infringement which operates in the USA. And because YouTube is owned by an American company, this is also the legal doctrine they are most likely to apply if someone challenges one of your videos using the DMCA takedown provisions. Fair use allows for the quotation of copyright material for the purposes of criticism which describes exactly what you want to do. To help determine what is 'fair' there is a four-factor test which is set out in Section 107 of the Copyright Act 1976 which the courts follow. You can read about the factors in Wikipedia article linked to above. The main thing to note is that courts in the different federal districts tend to apply the factors in an inconsistent way, and so it is not always easy to say with certainty how a particular court might rule on a given situation.

UK. The UK operates a doctrine known as fair dealing and although at first sight this may appear to be a lot less flexible than Fair Use, in fact the specific categories of fair dealing (namely criticism or review, private study and research, news reporting, quotation, parody and incidental inclusion) are relatively well defined and your use would fall entirely within the exceptions. There are two things to note: you must wherever possible cite the work you are reviewing - this is obviously something you would do anyway - and the amount you use should no more than is necessary to make the point you wish to make. While this may be a subjective decision, if you feel that mere words alone cannot be used to get your point across, then an illustrative clip from the film will probably be justified. Since films are largely a visual medium, it stands to reason that a clip will often be the only way to demonstrate, say, a film maker's use of cinematography. However if you are criticising dialogue, the written version may be all that is necessary.

A general point to note is that most of the content on YouTube is monitored by bots for suspected infringing use, and any resulting DMCA takedown notices tend to be automated without much, if any, human oversight. This means that using a film title in the title or metadata of your video could automatically get the video flagged up, and as a result you may have to justify your use of the material under the Fair Use terms (even if you are based in the UK) in order to get YouTube to re-instate your video. However YouTube (and indeed other internet service providers) do not act as arbiters of whether there has or has not been infringement. That is a matter for the courts.
Last edited by AndyJ on Mon Jan 09, 2017 9:49 pm, edited 1 time in total.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

Kammacher16
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Post by Kammacher16 » Mon Jan 09, 2017 7:39 pm

Thanks, Andy - that was a really full and helpful reply. I live in the UK, but as you say the US law might be more applicable when dealing with YouTube.

Much appreciated!

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