Is it fair use to use original clips from Deal or No Deal in a parody?

July 8, 2007 4:16 PM

I'm producing a parody of Deal or No Deal. Since assembling an audience of sufficient size is beyond my means, I am planning to occasionally show audience shots from an original episode of Deal or No Deal. Does this qualify as fair use?

Here are the conditions under which the footage will be used:

1) The use is commercial. (It will also be internet-only, not that that makes a big difference.)
2) The piece is a parody of the show that we're taking source footage from, and there's a longstanding precedent for parody qualifying as criticism.
3) The usage is extremely limited (a few two-to-five second clips) and transformative (in most cases we'll be matting out everything but the audience and compositing the shot behind our own actors -- that is, we'll be creating a collage of our footage and footage from the original show.)

I obviously don't expect definitive legal advice, and am well aware that fair use is notoriously hard to define until after-the-fact -- and in the long run, the decision will largely be based on what our publisher finds acceptable. Still, trying the question on you guys will help me get a feel for whether or not we're overstepping our limits here. Thanks!

posted by tweebiscuit to Law & Government (14 answers total)

Response by poster: I think that the answer would seem more obvious to me if we were criticising the clips themselves more directly -- for instance, in this parody of Project Runway we have our main character directly responding to original clips from the shows, which is much more direct form of criticism -- the same would be true if we used, say, the opening titles of Deal or No Deal in our piece. (We're not going to -- our fictional show has a different title.) The fact that we'll be using the clips as occasional digital setpieces is what makes the question more confusing and difficult.
posted by tweebiscuit at 4:19 PM on July 8, 2007

As you say, there's no definitive answer. However, here's a question: does it matter? Let's say the folks behind Deal or No Deal decide to send you a cease and desist. If you're not going to spend the cash to fight it -- and it would probably be cheaper just to get your own audience -- then it doesn't really matter whether you would have won or not.
posted by L. Fitzgerald Sjoberg at 5:11 PM on July 8, 2007

I would say you're good. You can use things pretty freely when you're parodying the actual work (Mattel v. Walking Mountain Productions), but not when you're parodying something else (Puppies/String of Puppies, where the parody was of society at large, not the work being used). Also, you're not using a particularly large chunk of the copyrighted work, which is one of the fair use factors.
Fair use is such a clusterf*#& that it's very hard to say definitively whether something's acceptable or not, but my gut says this is okay.
posted by katemonster at 5:11 PM on July 8, 2007

Oh, and this wasn't your question, but it might help anyway: look into stock footage. I'm not sure what's keeping you from getting an audience together, but royalty-free stock footage of an audience might be cheaper and easier.
posted by L. Fitzgerald Sjoberg at 5:12 PM on July 8, 2007

Response by poster: LFS -- I've been looking into stock footage, but unfortunately nothing has the proper "look" of a TV game show audience -- i.e., shot on video, dramatic lighting, with the audience hooting and hollering in response to the action onscreen.
posted by tweebiscuit at 5:46 PM on July 8, 2007

Parody is one of the recognized Fair Use cases. You're clear.

A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to "conjure up" the original.
posted by Cool Papa Bell at 6:46 PM on July 8, 2007

Response by poster: Ah, that Stanford link is a great piece of backup. Thanks!
posted by tweebiscuit at 7:57 PM on July 8, 2007

Why not use crowd shots that are obviously not part of DOND? I'd think that would make it even funnier.
posted by kindall at 8:00 PM on July 8, 2007

I'd use it. Sounds like a pretty clear fair use to me, but even if NBC doesn't agree and sics you with lawyers, you could work that in to enough publicity to get free legal help and get more eyes on your projects.

PS - I liked the project runway spoof. You should drop a link to this one when it's finished.
posted by the christopher hundreds at 8:01 PM on July 8, 2007

You say the use is "commercial," and for the web.
If it's an advertisement for a product, or a "parody" that's shown on the web that you're trying to financially profit from, I don't think that fair use applies.
You're not parodying this show for the betterment of mankind or public information purposes, it's a "commercial" venture of some sort.
I'm not a lawyer, but I am a producer, and I wouldn't go through the trouble of making something just to get cease and desisted, unless that's your intent on some kind of guerilla marketing tip.
If you have graphic support and compositing capabilities, why not greenscreen it and make "parody" graphics of your own?
Or, be a pro and call the Deal or No Deal people and try to get permission.
posted by BillBishop at 8:15 PM on July 8, 2007

I know you were asking about the audience shots specifically, so sorry I didn't address it better.
I was just referring in general to use of their video assets in a for-profit venture.
I would really recommend placing a call to them before doing anything else. It might save you trouble in advance, especially if you have a link to some previous work you could show the staff of Deal Or No Deal.
posted by BillBishop at 8:23 PM on July 8, 2007

BillBishop, commercial nature is only one of 4 factors used in the fair use test, and it's not dispositive. For example, if tweebiscuit were "parodying" Deal or No Deal in an attempt to siphon off viewers, that would almost certainly be a prohibited commercial use. If it is to mock DOND/Howie/the audience to make a point, then the fact that it has commercial aspects does not necessarily disqualify it. Similarly, entertainment productions (films, TV shows) that are made for profit are still entitled to full 1st Amendment protections -- they are not deemed "commercial speech" (which is less protected) just because they were created to make money.
posted by katemonster at 8:50 PM on July 8, 2007

I agree that they're protected if they want to say or act out things, I just wouldn't gamble on using their actual video assets in doing it.
NBC obviously has scary legal hounds who have to justify their paychecks. You might be able to fight a First Ammendment battle, but dude is just trying to produce a comedy short. I would rather just try to get permission or ask some friends and family to be the fake audience.
posted by BillBishop at 9:08 PM on July 8, 2007

As a follow-up, here's tweebiscuit's sketch:
Don't take the money
posted by Gary at 1:06 PM on October 1, 2007