Stupid Copyright III: Can I use 40 seconds of this under fair use?

I was reading the documentary makers standards and practices this afternoon and it's pretty interesting.

I want to use about 40 seconds of the following clip:

https://www.youtube.com/watch?v=3yRh5NNiFG0

Of course I will contact them anyway but it's close to Christmas so it'll be hard cos the deadline's in one week.

I won't hold anyone to what they say here, obviously. It's my own deal, I just wondered what people's gut feelings were.

I can use only 15 seconds if I have to, does that put me lower under the radar?
 
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Do you own the footage? Unless the imagery is in public domain, which I'm pretty sure the linked clip is not, then legally you'll need permission. And I'm pretty sure the 15 second thing is a myth.
 
The fair use law is quite specific. And there is no time limit or
maximum even though that myth is very prevalent.

"quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations;"

So if your piece is a review you can use an excerpt. If it's a
scholarly or technical piece and you need to use part of this
video to illustrate your point you can use an excerpt. There
are a few other examples under fair use: if you are a teacher,
if you need the excerpt in a judicial proceeding, if you are using
it for a news broadcast.

Very important to understand is that fair use is not a rule but a
case-by-case analysis. You can be sued. You may win, but that
still costs money. And Ono is careful to protect her husbands
likeness, writings and interviews.
 
Say what you want about her, but she is very protective.
And rightfully so in my opinion. Defending yourself in a
copyright lawsuit can get expensive. Even if you win.

But I guess taking the chance might be worth it. I imagine
there are far more violations that are never challenged than
those that are.
 
OK thanks for all your replies. I appreciate the time the more experienced among us take to help out the relative newcomers. I'd be lost without this forum.

- Sonny, I understand the 15 second thing is a myth, I just meant cutting down my excerpt from 40 to 15 seconds to give me a shorter cut and therefore a better fair use case. I've got no need to go up against Yoko Ono. If anyone objects to having their footage used I'd take it down straight away. Got no time to go to court.

Do you own the footage? Unless the imagery is in public domain, which I'm pretty sure the linked clip is not, then legally you'll need permission. And I'm pretty sure the 15 second thing is a myth.

This is not always the case any more as laid out by the 'documentary makers standards and practices.' However, it's a minefield and it's ALWAYS good to ask.

Say what you want about her, but she is very protective.
And rightfully so in my opinion. Defending yourself in a
copyright lawsuit can get expensive. Even if you win.

But I guess taking the chance might be worth it. I imagine
there are far more violations that are never challenged than
those that are.

So the key question becomes: If I am happy to drop the footage after one email or cease and desist to youtube, can I still be taken to court? The clip shows him in a very good light and is transformative. Say it was on youtube for 10 days, got 40,000 views, she sent a letter and I dropped it. Is there any case there or not?

I might further cover myself by sending a fair use notice. The fact is that moderate fair use IS allowed under US and international law.

I guess I'll post the whole video when it's done and see what everyone thinks.
 
The fact is that moderate fair use IS allowed under US and international law.
If you are convinced that this fact is, in fact, a fact then
go for it.

Copyright infringement isn't contingent on whether or
not you feel it is used properly ( shows him in a very
good light) of for the amount of time you feel is acceptable.
It is up to the owner to decide all that. As I said, I know that
many people get away with it all the time. You might.
 
If you are convinced that this fact is, in fact, a fact then
go for it.

I'm just going by DMSAP that I read yesterday. I'll post some excerpts later when I have more time...

Sure, I understand that the final decision rests with the owner and then the courts. What I'm trying to do here is not so much justify my legal position, but approach the situation in a respectful and legitimate manner. I'm trying to do everything I can to comply with best standards and practices and put myself at the safer end of the fair use spectrum.

Does anyone know if my question in the previous post, the fact that I will cease and desist if asked... does that give me any cover at all?

I think the headache a lot of us have is they CAN do anything, but in practice, and good faith, you may be O.K.

Thanks.
 
Here's the whole thing. It's a good read. Bold mine.

http://www.socialbrite.org/sharing-center/law/filmmakers-best-practices-in-fair-use/

Fair use is a key part of the social bargain at the heart of copyright law, in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture. We have chosen to encourage creators by rewarding their efforts with copyright. To promote new cultural production, however, it also is important to give other creators opportunities to use copyrighted material when they are making something new that incorporates or depends on such material. Unless such uses are possible, the whole society may lose important expressions just because one person is arbitrary or greedy. So copyright law has features that permit quotations from copyrighted works to be made without permission, under certain conditions.

Fair use is the most important of these features. It has been an important part of copyright law for more than 150 years. Where it applies, fair use is a right, not a mere privilege. In fact, as the Supreme Court has pointed out, fair use helps reconcile copyright law with the First Amendment. As copyright protects more works for longer periods, it impinges more and more directly on creative practice. As a result, fair use is more important today than ever before.

Creators benefit from the fact that the copyright law does not exactly specify how to apply fair use. Creative needs and practices differ with the field, with technology, and with time. Instead, lawyers and judges decide whether an unlicensed use of copyrighted material is “fair” according to a “rule of reason.” This means taking all the facts and circumstances into account to decide if an unlicensed use of copyright material generates social or cultural benefits that are greater than the costs it imposes on the copyright owner. Fair use is flexible; it is not uncertain or unreliable.

In weighing the balance at the heart of fair use analysis, courts employ a four-part test, set out in the Copyright Act. In doing so, they return again and again to two key questions:

Did the unlicensed use “transform” the material taken from the copyrighted work by using it for a different purpose than the original, or did it just repeat the work for the same intent and value as the original?
Was the amount and nature of material taken appropriate in light of the nature of the copyrighted work and of the use?
Among other things, both questions address whether the use will cause excessive economic harm to the copyright owner.

If the answers to these two questions are affirmative, a court is likely to find a use fair.
Because that is true, such a use is unlikely to be challenged in the first place. Documentary films usually satisfy the “transformativeness” standard easily, because copyrighted material is typically used in a context different from that in which it originally appeared. Likewise, documentarians typically quote only short and isolated portions of copyrighted works. Thus, judges generally have honored documentarians’ claims of fair use in the rare instances where they have been challenged in court.
 
Youtube can and will delete your account without notice if they like... No eason, no getting your side of the story. I had an account deleted once with no warning... you been told
 
After hearing all these viewpoints I think I'll make 3 versions of the extended doc I'm making. A safe version, a reasonably safe version and the Yoko Ono cut. I'll probably release the first two. The clip with John L is window dressing. Nice but not worth getting hauled over the coals for.

Sooo... what does your lawyer say about it?

Mr Hutz and I are fairly certain I have a good case. Heh.
I'll probably play it safe.

Youtube can and will delete your account without notice if they like... No eason, no getting your side of the story. I had an account deleted once with no warning... you been told

This would be irritating but it's no sweat. I'm trying to go about this the wrong way to avoid all those shenanigans.

*I've gotta say, after reading a lot of bad press about Yoko Ono she comes across as a decent and intelligent woman.
 
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