"Fair Use and Copyright"
Okay in this entire debacle over a Gubanatorial Candidate using clips of someone's short films to "demonstrate" that the actor in their opponents ad is in fact... an actor. They used someone else's copyrighted clips in their political attack ad without permission or compensation (while spending millions on advertising), they use as their defense the idea of 'Fair Use' to supercede the filmmaker's individual copyright. One one blog by a lawyer, where he greatly misrepresents the interpretation of the laws and cites no actual statutes, claims that using the clips is fair use.
Without legal representation, the filmmakers lose the control over their clips. And in the debate, which sadly has everyone sitting on their own political sides of the fence instead of standing on the principal of intellectual property theft. Yes, I am a little familiar with FAIR USE and what it means. It seems everyone siding with their candidate wants to believe that this was Fair Use and everyone on the other side wants to be outraged because they are on the other side.
I stand on principal here, not with political idiocy.
Direct from the United States Copyright Office...
One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of fair use would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered fair nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney.
1. The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new.
In this specific case, they are using someone else' copyrighted clips without stimilating creativity or enriching the general public in a POLITICAL AD. It's not advacing knowledge or creating a new work of art. This is where "Fair Use" gets gray, it's when a work is "transformative", meaning when you create an all new work from pieces of copyrighted works. The attorney on this other blog claims it's the very definition of "transformative" because the intent changed. The intent of the works, yes, but not the clips themsevles. They are being used as clips from a short film... one being used without permission. They are not a parody of the political ad, they are completely unrelated narrative films and being used in this advert for politics, they remain narrative films, only used as an example and without the consent of the copyright holders.
2. Nature of the work is pretty clear to. If the work is in the public interest, ala the Zapruder Film of the Kennedy Assasination, your personal copyright can be removed. It was deemed in to be something for the public.
In many cases, you can use "Fair Use" to use pieces of copyrighted material for criticism... but criticism of the work itself, not other works and not politicians. I think this is NOT a gray area in Fair Use law.
They are not using the clips of the short films to criticise the short films themselves. They are demonstrative that they are in fact short films and that the actor is an actor. This also negates the "parody" defense because they are not making a parody of the short films;
3. The amount of the work and Fair Use does not factor in this case because enough of the work is present to identify the piece and actors in it, including actors who did not work on any prior political ads.
4. The value of the work and if the Fair Use claim affects that is a very subjective concept. If your short film is used in a political smear campaign, it can obviously have adverse affects on it's "value". The filmmakers have been involuntarily sided with one political party. They can lose future investors for something they did not choose to do. They have a de facto affiliation with a negative ad campaign and a single