Thursday, March 23, 2006

"Fair Use" on Revver... A case study on the gray area

One of the hottest subject for Revverbation posts (with maybe technical issues as an exception) is the firm policy of Revver to avoid posts of copyrighted material. As I've said before, I wish I could use known music to score my videos, but I respect that Revver is protecting creators. I'd be bummed if someone posted one of my videos in their name and made a bunch of money.

Determining what is a copyright violation and what is covered by "fair use" is indeed an art not a science. Here's a nice piece on the subject.

So let's use as a case study my recent video titled "The Office's Youngest Fan" The link takes you to YouTube, because it got red flagged on Revver and may not ever go live. The piece is a video about my son's hysterical laughter based on a clip from The Office. The video's thesis isn't about The Office, but rather the charm of a 3-year-old cracking up on a bit from an adult show targeted to office workers. And his laughter is contagious. For context, of course, I had to show a tiny clip of what he was watching- and that required a few seconds of met pointing the camera at the TV playing "The Office." Is this fair use?

Let's review some aspects based on the article above about fair use. The individual who wants to use a copyrighted work must weigh four factors:

1) The purpose and character of the use: Is the new work merely a copy of the original? If it is simply a copy, it is not as likely to be considered fair use.
Does the new work offer something above and beyond the original? Does it transform the original work in some way? If the work is altered significantly, used for another purpose, appeals to a different audience, it more likely to be considered fair use.
I think The Office clip gets a B plus on this one

2) Nature of the copyrighted work:
Is the copyrighted work a published or unpublished works? Unpublished works are less likely to be considered fair use.
Is the copyrighted work out of print? If it is, it is more likely to be considered fair use. Is the work factual or artistic? The more a work tends toward artistic expression, the less likely it will be considered fair use.
I don't get this one, so I'll give The Office clip a C plus.

3) The amount and substantiality of the portion used: The more you use, the less likely it will be considered fair use. Does the amount you use exceed a reasonable expectation? If it approaches 50 percent of the entire work, it is likely to be considered an unfair use of the copyrighted work. Is the particular portion used likely to adversely affect the author's economic gain? If you use the "heart" or "essence" of a work, it is less likely your use will be considered fair.
My clip get an A here I think.

4) The effect of use on the potential market for the copyrighted work:
The more the new work differs from the original, the less likely it will be considered an infringement. Does the work appeal to the same audience as the original? If the answer is yes, it will likely be considered an infringement.
Does the new work contain anything original? If it does, it is more likely the use of the copyrighted material will be seen as fair use.
Again- a B plus here.

So you be the judge. Is this clip a copyright infringement or not? I have no doubt that the folks from "The Office" would gladly approve this as a nice "word of mouth" ad for a fantastic show that needs a bigger audience. But I haven't got time to contact the network...


At 3/23/2006 9:13 AM, Blogger Marquisdejolie said...

I, too, had a video which used a clip from TV rejected. My TV clip didn't use the sound portion of the broadcast as I was using the video to illustrate a song I composed in Garageband. My video clip was an out of focus, out of sync taping of me changing the channels every second so that the viewer could see that it was TV but not really make out the content from the flashing images. This, I thought, made me safe from any copyright infringement issues.

I guess not. I guess the Revelators (a concantenation of Revver and regulators) see a TV in the clip and shriek like the aliens in "Invasion of the Body Snatchers."

Thanks for all the Fair Use info. Appreciate all the work you're putting in to this so-far-entrepreneurial enterprise.

At 3/23/2006 10:10 AM, Blogger Get Paid For Your Videos said...

I think Nalts is poining out some very important facts, and I can also understand Revver's intention to host purely originally created content. Even the world famous Numa Numa kid used the now famous Numa Numa song to become a celebrity. Let's be honest...I'm sure that band that recorded that song in Eastern Europe is sure glad the Numa Numa kid sold their song for them, and they are not going to be suing the "kid" for using their song without permission. It's a fuzzy line, no pun intended, between what is is considered copyright or not.

At 3/23/2006 5:43 PM, Blogger Nalts said...

I want to highlight two important points of this thread:

1) Jarvis has now coined the term "Revelators" as a hybrid of Revver and regulators. It's a term I plan to use, because it's a bit more politically correct than the Revver Copyright Soup Nazis.
2) Fuzzy has taken his artform to a higher level by securing the Blogger Name, "Get Paid for Your Videos," and directing traffic to his site that currently features him singing about Jaegemeister with a sex doll.

At 3/24/2006 12:19 AM, Blogger Get Paid For Your Videos said...

argghh - it that me ? too much jeagermesiter I guess. :)


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