Jul 11, 2011, 14:45

Media producers working on projects often have to answer questions about Fair Use of copyrighted material in their projects. It’s generally known that, within certain limitations, copyrighted material can be used without obtaining permission from the rights holder if the usage falls within certain limitations.

So what are those limitations?

According to the US Copyright Office, there are four factors to weigh when deciding if your usage of copyrighted material would be considered Fair Use.

Ask yourself these four questions and grade yourself honestly on a scale of 1-25 for each question; with 1 being “There’s no way a judge would believe that” and  25  being “Even my worst enemy would say ‘yes'” (*This quiz does not constitute legal advice. We are not lawyers.)

1) Are you doing something transformative? In other words, are you creating something that is new and original in which the copyrighted work is just a component?

2) Is the material you are using well-known by the public? A clip from a high-grossing Hollywood movie studio would score lower in this case than a quote taken from a 1950’s out-of-print textbook about the Civil War.

3) Is the amount you used reasonable in regards to what you’re trying to communicate? For example, if you were trying to communicate the brilliance of novelist Stephen King, did you make your point by sharing a particularly well-written group of sentences… or three entire chapters of Carrie?

4) Will your usage in any way reduce revenue for the original copyright holder or occupy any market space in which the copyrighted work competes? Will the rights-holder miss out on any revenue opportunities because of your usage of their intellectual property?

If your final score was 90 to 100, we think you’ve made an “A” on this quiz and your usage is probably ok. If your final score was below 70, then we think you’re better off contacting the rights holder and obtaining permission beforehand or replacing that portion of your video with something affordable (*plug: like our royalty-free music).

In the recently published 35 minute video below, intellectual property attorneys Anthony Falzone and Julie Ahrens address real-world examples like You Tube videos, movie reviews, etc. and explain exactly how the four questions would apply:

The part of this video that may surprise media producers most is when Ms. Ahren explains that making money on a project would not immediately disqualify you from incorporating copyrighted material in a larger work. Fair Use is not just for schoolteachers. It’s less about commerce and more about giving artists leeway to create something new and unique that doesn’t jeopardize revenue for creator of the original work.

Mr. Falzone summarizes the concept best at the end of the video when he says:

“Fair Use is not a dusty, dark little exception to copyright rules. It’s a fundamental part of the copyright bargain. It is a thing that protects your right to express yourself and create new things from the world around you.”

Special thanks to the Stanford Center for Internet and Society for publishing this video.


Mike Bielenberg is a professional musician and co-founder of http://www.musicrevolution.com, a production music marketplace with nearly 15,000 tracks online where media producers, video producers, filmmakers, game developers, businesses and other music buyers can license high-quality, affordable royalty-free music from an online community of musicians.

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