Open Forum

Hi Ted:

I'm an attorney in CA and TX. Unfortunately, there is no "hard and fast" rule on what is fair use. Of course, the safest thing to do is to get the Copyright owner's permission. They might allow the use for free, or for a very small license fee. 

With that said, Courts will generally consider four factors and weigh them in favor of or against fair use. Below is a brief description of each of the four factors:

1. Purpose and Character of the Use: Is your use commercial or transformative in nature?

a.     Commercial Nature: Examples of commercial use would be if you are selling items with the material in your gift store; or you are using the material in advertisements in order to get more visitors for profit. If the use is commercial in nature, it is more likely to weigh against being fair use.

b.     Transformative Use: The use is to educate the public about the material/Work itself. For example, you are discussing the "look and feel" of the material. This is more likely to weigh in favor of fair use.

2. Nature of the Copyrighted Work: If the material is very creative, expressive or artistic, this weighs against it being fair use. If the material is more factual with little creativity, it is more likely to weigh in favor of fair use.

3. Amount and substantiality of the portion used: It is more likely to be fair use if a very small portion of the original material is used; with the caveat that it can't be a portion that is a pinnacle piece of the original.

4. Effect of the use upon the market for the Work: Will your use decrease or usurp the market for the original work? For example, are you showing enough of a film that viewers would not need to go purchase a ticket to see the original? Or does the Copyright owner routinely sell licenses for your type of use?  If not, this weighs in favor of fair use. On a related note, I have seen an increase of cease & desist letters from companies like Associated Press, PicRights, Reuters (or their attorneys Higbee & Associates) for use of images copied from the internet. It is much more economical to pay a license fee for the use of an image, than to pay an attorney to respond to the cease & desist letter (no matter how frivolous the demand is).

Disclaimer: This is information is for informational purposes only, and does not create an attorney/client relationship. If you have a specific legal issue for a specific situation, I recommend you seek the advice of your attorney.

I hope this helps!

Thank you,

Hi Ted,

Some resources you might consult:

Rights and Reproductions: The Handbook for Cultural Institutions
Offers rights and reproduction guidelines, standards, and best practices; includes topics such as fair use, Creative Commons, open access, and RightsStatements.org. (AAM Members receive 20% off this title by using the coupon code AAMPRESS20)

Code of Best Practices in Fair Use for the Visual Arts
Provides best practices in assessing fair use in visual arts. 

Copyright & Cultural Institutions: Guidelines for Digitization for U.S. Libraries, Archives, & Museums
Provides guidelines and best practices for digitizing archival collections; includes a section on fair use.

Hope this helps!

-Anna

As stated, no easy answers. I'm going to give you my non-lawyer's take from 30 years of observing the reality on the ground in documentary work. It's important to understand that "Fair Use" is a defense against copyright infringement, meaning that you can defend yourself against an infringement lawsuit by invoking Fair Use, but Fair Use cannot be asserted before the fact. In other words, Fair Use is a defense against violating copyright. 

In the real world, the more meaningful question is "Will someone sue me for this use?" Fair Use informs this but does not answer it. They may sue you anyway. Understanding Fair Use is about understanding whether copyright holders have a case against you, and whether are likely to act on that belief. I usually focus on the second question first. How likely is the copyright holder to sue me for this? Then I consider the strength of the Fair Use claim against such a suit. Will they be willing to spend money knowing they will lose? In the real world, this is largely a question of how much money (or "value") is involved, but there are other issues. 

Here are two real-world examples. 1) A documentary uses off-air news footage based on Fair Use Principles. NBC sues to remove the footage. They sue not because they care about the infringement per se, and not because Fair Use was not a reasonable claim (it was), but because the usage exposed NBC to other legal liability. They were protecting themselves. The producers fought only because they had staff lawyers. After many months of back and forth, NBC settled for a disclaimer at the beginning of the film stating that they did not have permission to use the material from NBC. The cost of fighting the suit was substantial, even though it never went to court. 2) Smithsonian lawyers tell producers that all the materials that they wish to use in a large exhibit project can be used as intended under "Fair Use" and no licenses are needed. When the project is near completion after two years, new staff lawyers panic, and retract the "advice of counsel" which means everyone panicked. Smithsonian spends significantly more licensing all the materials after the fact. Would Fair Use have been a valid defense? Possibly. Would the Smithsonian have been suedby someone? Highly likely because some of the copyright owners who had deep pockets would have seen this action by such a high-profile institution as a threat. It would have set a precedent.

For more expert opinions on negotiating Fair Use in the real world, I refer you to American University's Fair Use project. https://www.wcl.american.edu/impact/initiatives-programs/pijip/impact/best-practices-in-fair-use/