Legally adding video clips to a review site?

April 16, 2008 1:30 PM

I'm working on a site (it's a personal project) where I basically review movies that I like. Lately, I've been thinking about adding video clips from the movies/series to give visitors a better understanding of what the movies/series are about. How do I do this legally?

My idea is to take a couple of minutes from each movie, do some minor editing and upload it to YouTube or a similar site.

However, this seems pretty difficult from a legal perspective. It seems like I have to get permission for each and every clip, which would take too much time (we're talking 40+ movies/series). To make matters worse, I'm not sure which country's laws to follow: I live in Sweden, the web site is hosted in the US and I'm not sure about the video hosting provider.

posted by Foci for Analysis to law & government (13 comments total)

I strongly subscribe to the "If you can't answer the specific question, shut up" approach, but your analysis of the legal situation as complicated is just overwhelmingly correct. There's simply no way you could this, keep all the various rights holders happy and/or at bay, and have it be a effective use of your time and money. There are so many stories about innocent people being harassed for attempts such as you describe.

My suggestion is to link to YouTube videos that closely match your criteria for a desired clip. That way everything's on YouTube, technologically and legally speaking. You may have to do some archive maintenance of your ratings to keep the videos updated, as YouTube videos can disappear for any number of reasons. Lots of alternatives to YouTube, as well.

The pessimist in me says that stalwart, sensible hero Sweden is going to get bullied into adopting less pirate-friendly legislation, eventually, so don't count on any protection there.

But bear in mind that you can get away with anything until the rights holder complains, and a cease & desist order is not a lawsuit. My personal approach would be to make the short clips myself, never think twice about the copyrights, and wait and see if my personal site somehow drew anyone's ire.
posted by chudmonkey at 1:41 PM on April 16

In my second paragraph, I'm suggesting linking to YouTube videos that are already in place. Sorry for any confusion.
posted by chudmonkey at 1:42 PM on April 16

chudmonkey, my initial idea was actually to embed YouTube clips, but I'm not sure about embedding other people's stuff because of the reasons you've mentioned (deletion, maintenance work, varying quality, etc). But I guess all the maintenance would still require much less work than doing it all by myself and in a legal manner.
posted by Foci for Analysis at 1:54 PM on April 16

I think what chudmonkey is suggesting is that you don't imbed them. Then they're still on someone else's site and much less your problem, legally speaking.
posted by shelleycat at 1:59 PM on April 16

Reproducing (small) portions of a copyrighted work for the purpose of critique or review is perfectly legal in the U.S. under the fair use doctrine.
posted by ChasFile at 2:00 PM on April 16

shelleycat: I think what chudmonkey is suggesting is that you don't imbed them. Then they're still on someone else's site and much less your problem, legally speaking.

Oh. Well I guess that's also an option. I just never thought that just embedding clips from, say, YouTube would be a problem as it's pretty much about linking to, not hosting, content.
posted by Foci for Analysis at 2:12 PM on April 16

Kristin Thompson, co-author of Film Art:

Around 1990 I was asked by the Society for Cinema Studies (now the Society for Film and Media Studies) to chair a committee to investigate the validity of Fair Use as applied to film images. The result was the “Report of the Ad Hoc Committee of the Society For Cinema Studies, ’Fair Usage Publication of Film Stills’” (1993). This report established that fair use most probably applied to film frames, and educators and scholars were not violating copyright when they used slides or illustrations photographed from the original film. Several presses changed their policies as a result of the report, no longer requiring their authors to obtain unnecessary permissions for frame reproductions. The use of frame enlargements in scholarly publications spread, and film studies benefited as more authentic and useful images were employed by scholars.

Happy ending, right? Certainly the studios never sued over frame enlargements, before or after the report. In fact, relatively few authors were using frame enlargements. It took special equipment to photograph such frames: expensive camera attachments, color-balanced light sources, and the expertise to use both. Those of us publishing extensively illustrated books on Ozu or Eisenstein weren’t exactly a concern to the film industry. In fact, studio executives probably didn’t know that we existed and wouldn’t care if they had.

Then along came DVDs, which made frame grabbing easy. Scholars who had never bothered to get the special equipment or learn how to photograph film frames suddenly could quickly pull images for use in their publications. The reliance on publicity stills declined further. Frames were everywhere, all presumably covered by the same Fair Use law that 1993 report had opined applied to the reproduction of film frames. Legitimate users of frames had to get around the encryption codes, but like millions of DVD users around the world, most of them were savvy enough to do so.

I’m sure that the DMCA was not envisioned as applying to film scholars seizing frames for their publications or professors using visual examples in classes. Still, the provisions of the act were so broad that suddenly scholars and educators were criminalized for doing what they needed to do to foster knowledge: show clips from DVDs in lectures and use frame enlargements from DVDs in books and articles. They had to get around the studios’ codes that prevented piracy. Many of us went ahead and broke the codes and published DVD-derived illustrations in our books or compiled discs containing clips from films to show in lectures. The studios didn’t seem to care, since to the best of my knowledge no teacher or scholar had ever been prosecuted for violating the DMCA.

Finally the recognition of this ludicrous state of affairs has been partially remedied. The Librarian of Congress, James Billington, himself a fine scholar in the area of Russian and Soviet studies, recommended a series of exemptions to the DMCA. The first one relates to film: “Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.” (“Circumvention” is described as “circumvention of technical measures that control access to copyrighted works.”)

This is specific to classroom situations and only applies to DVDs owned by an educational institution. What if the teacher copies clips from his/her own DVDs to use in class? (All too frequent, given the tight budgets of universities and high schools.) Nevertheless, the general implication of this exemption is that the same Fair Use principle that applied to film clips and frames duplicated from analogue copies of films (i.e., 35mm and 16mm prints) should apply even if the educator or scholar is breaking a code to do that duplication. If clips are OK, why wouldn’t single frames be?

The exemption is a small step in chipping away at the monolithic laws protecting intellectual property that the studios are determined to put in place even when it goes against their own interests. Lectures, articles, and books do not damage the studios’ ability to exploit their own films commercially (one of requirements for Fair Use to apply). Quite the contrary. Film professors show clips and still images that publicize films and possibly inspire students to rent or buy DVDs. Articles and books similarly publicize films, even though their contribution to the attention paid to any given title is miniscule.

Making an exception in the DMCA as originally passed to allow for the educational/scholarly use of digital film images would never have occurred to the studios as they lobbied for this sweeping legislation. Few movers and shakers within the industry know there is such a thing as film scholarship, much less understand what we do. Fortunately people like Billington understand. His recommended exemptions went into force November 27.

So, film educator, the next time you prepare a lecture involving clips, you don’t need to pull the curtains, lock the doors, and glance nervously over your shoulder as you copy a tracking shot from Grand Illusion and another from The Magnificent Ambersons. You are no longer a thief.

http://www.davidbordwell.net/blog/?p=152
posted by blueshammer at 2:35 PM on April 16

I think that has gotten a bit confused.

You can embed any video from YouTube. Complaints from copyright owners go to YouTube, not you, because you are not hosting the video. The embed is, technically, a link. Please see this article from the EFF for clarification. After that, this article provides some important clarification and best practice.

If you want to create additional clips, since you're doing reviews, conservative clips would normally fall under Fair Use. That doesn't mean you're not going to spend time dealing with cease and desist and DMCA take down notices. You may choose to cave on the C&Ds, but the DMCA process is very straight forward and easy to deal with. You'd have a standard counter claim letter with the Fair Use paragraph.
posted by DarlingBri at 2:47 PM on April 16 [2 favorites]

Fair use may cover this -- even if you're hosting the content yourself. (Though a fair use claim may be somewhat questionable if you're taking several *minutes* of a film, even with editing and commentary.) The bigger problem is that fair use is in the nature of an affirmative defense.

What that means, basically, is that you may have a right to use these clips under 17 USC 107, but you won't be able to prove it unless you go through a fair bit of litigation in a US District Court (after somebody brings a copyright infringement claim against you, you can use fair use to say what you did was legal.) This isn't specific to your situation, it's just the way fair use works under US copyright law. Thus, if you get a cease and desist letter, odds are you just pull the clip and that's the end of it, plausible fair use claim or not. It's just too expensive.

Linking to content on YouTube is probably the safest option, at least from a CYA perspective. Content owner has a problem, content owner sends a DMCA notice to YouTube, content disappears. Perhaps the YouTube account of the poster gets suspended/banned, but that's more of a repeat offense thing. (That's how YouTube covers their own ass. See 17 USC 512(c), 17 USC 512(i)).

DarlingBri's link to the EFF is right on the money if you really seek extra protection.

I am not a lawyer, this is not legal advice, etc, etc... I suppose it comes down to "what's your comfort level?"
posted by theoddball at 4:16 PM on April 16

It sounds like textbook fair use to me., and DarlingBri's suggestion to just have your responses ready is wise and sound.

Legalese-free: If a content owner disagrees, they'll first ask you to stop. It's not as if they'll sue you as their first move.
posted by rokusan at 5:06 PM on April 16

Short clips should be fair use, and having a couple links to amazon or similar for legally purchasing said movies would sweeten the deal for the movie companies.
posted by lundman at 7:39 PM on April 16

Get a lawyer. No, I'm not kidding. Some things to consider:

The 9th Circuit and the EFF say that embedding is the same as linking. The EFF is not a court, and they're as far from "neutral" as it gets. The 9th circuit is the most overruled circuit in the nation, and by a wide margin. Taking anything that happens there as the gospel is terrible idea unless it's been confirmed by other circuits or the Supremes... and that's just in the US.

Web hosts are extremely paranoid about DCMA takedown notices. The first time they get one, the most probable response is for your site to completely disappear, regardless of the legal merits of the case, until you've convinced them that everything is Kosher (probably by taking down the video).

Speaking of that... being "right", legally, does not make getting sued any less annoying or expensive (at least up front). There are quite a few lawyers who make quite a lot of money to make sure that their clients never have to see the inside of a civil courtroom, and there's a reason for that... because getting sued sucks.

Further, the fact that you're spanning jurisdictions makes this a pretty complicated legal analysis.

...

If I were in your shoes, and was set on using videos, I'd take the time to call/write the owner of the IP, send them a copy of the clip you'd like to embed in your review (or describe its content, length, and quality), and ask for permission to use it ahead of time. Doing that would eliminate the need for a lawyer as long as you didn't use the clip if they said "no".
posted by toomuchpete at 8:54 AM on April 17

For now, I think I'll just go with embedding YouTube clips. Uploading my own clips just sounds too risky and cumbersome from a legal perspective. Atleast this gives me more time to better learn video editing. Thanks everyone for your help.
posted by Foci for Analysis at 4:24 PM on April 18