IS IT LEGAL?
SNAPSHOTS
FAIR USE: USING FOUND FOOTAGE IN A DOCUMENTARY FILM “I am making a documentary film and found some great material on YouTube, including clips from television shows, music videos and user-generated videos that I would like to use. Can I use this material in my documentary under fair use without obtaining permission? With all questions involving whether fair use applies to a work protected by copyright, the frustrating answer is, “It depends.â€? Fair use is a legal doctrine that promotes freedom of expression by permitting the use of copyrighted work without consent of the owner for certain uses. As codiďŹ ed in Section 107 of the current copyright act, fair use does not offer speciďŹ c exemptions but rather requires courts to balance a list of four factors. In other words, its offers guidelines—not rules—and no formula can be applied with certainty. It is described as the most misunderstood area of copyright law, even by courts that decide if the doctrine applies on a case-by-case basis. While the preamble lists examples
of fair use, such as criticism, comment, news reporting, teaching, scholarship or research, the list is not exhaustive. A better answer here is, “Show me how the work is used, how much of it was used in relation to the whole work, and the context of the use.â€? As a general rule, any work you ďŹ nd, whether published in print or online, including YouTube videos, is likely protected by copyright and requires consent of the owner. The owner of the work retains the exclusive right to authorize its reproduction, public display, distribution or performance, as well as the creation of any derivatives, for the duration of copyright, which is currently the life of an author plus 70 years (for an individual). Exceptions begin when a work is old enough to be out of copyright,
is a government work and not subject to protection, or is published by the creator under a license that permits use without permission. The four factors to be considered for fair use are (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonproďŹ t educational purposes; (2) the nature of the copyrighted work (for example, if it is factual or creative); (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. These factors are not all treated equally. Simply because a work may be commercial does not mean that its creator can rely on fair use. In fact, the
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