How much of a news clip can I use in a commercial without paying royalties?
August 31, 2008 1:06 PM   Subscribe

How much of a news clip can I use in a commercial without paying royalties?

I am trying to put together a 15 or 30 seconds commercial for TV broadcast. I would like to show clips from news channels showing their headlines. I am willing to modify the clips to add shake or scanlines or something to make it a derivative work if need be.

How much of a news clip can I use without paying a royalty? Does such a limit exist? How would I find out the royalty for paying for a news clip if it is over such a limit?
posted by torpark to Media & Arts (18 answers total)
You can't use anybody's anything for a commercial purpose. The known limit is zero. What you can actually get away with if you want to be shady and steal someone else's work is another issue. A commercial is not fair comment. It's a commercial, and if you associate someone else or their work in your pitch, you're asking for trouble. Just make up fake headlines and quasi announcers of your own. Shouldn't be hard at all.
posted by Listener at 1:20 PM on August 31, 2008

When you say news channel, I suspect any actual channel would vigorously object to being mentioned visually or verbally in your commercial.
posted by Listener at 1:22 PM on August 31, 2008

Response by poster: I'm pretty sure Fair Use doctrine applies. I don't think presidential candidates pay to use footage of their competitor.

Fair use does not exclude commercials, infact it appears to be used in the "balance" it defines.
posted by torpark at 1:30 PM on August 31, 2008

Depends which country you're in. Having worked both in broadcast and advertising regulation, it depends on the commercial. In the UK, you cannot show headlines. No ad can appear to be a programme, andf using news clips is really really iffy.

This is all before you have to pay royalties, by the way.
posted by mippy at 1:31 PM on August 31, 2008

You should check out this resource on Fair Use. The bottom line is, there is no hard and fast limits on where Fair Use ends and where infringement begins. The law is deliberately fuzzy, to allow for interpretations on individual cases that could benefit either party. All you really have are the traditional four factors to determine if something is infringing or not.

Unfortunately, since what you're doing is intended to be a commercial advertisement, you're already arguably failing the first test.
posted by Cool Papa Bell at 1:40 PM on August 31, 2008

I'm pretty sure Fair Use doctrine applies.

No it doesn't, did you even bother to read the link you posted? You can't use someone else's intellectual property for your own commercial purposes, sorry.
posted by bradbane at 1:50 PM on August 31, 2008

Response by poster: Okay. It seems that people here seem to not understand fair use. Fair Use DOES allow you to use other people's work in for-profit commercial. The question is if it meets the balance. That is what we are looking for. Does a 1 or 2 second silent blip meet fair use?
posted by torpark at 1:56 PM on August 31, 2008

Response by poster: bradbane, Fair use, section 17, part 1. Commercial use is NOT an exclusion.
posted by torpark at 1:57 PM on August 31, 2008

Fair Use DOES allow you to use other people's work in for-profit commercial.

Only if such work is sufficiently transformative or adds value to the previous work.

When taking portions of copyrighted work, ask yourself the following questions:

* Has the material you have taken from the original work been transformed by adding new expression or meaning?
* Was value added to the original by creating new information, new aesthetics, new insights and understandings?

In a parody, for example, the parodist transforms the original by holding it up to ridicule. Purposes such as scholarship, research or education may also qualify as transformative uses because the work is the subject of review or commentary.

Does a 1 or 2 second silent blip meet fair use?

Again, the answer is "it depends." There's no hard and fast rule. From the same Stanford link above:

The less you take, the more likely that your copying will be excused as a fair use. However, even if you take a small portion of a work, your copying will not be a fair use if the portion taken is the "heart" of the work.

Hypothetically, you could take a 1-2 second silent blip from a local TV news show and think you're doing OK. But what if that 1-2 second blip included THE trademark image from that show, the thing that makes it famous in the first place? The thing that might cause a reasonable person to go, "Hey, what's going on here?"

Nobody can really answer this question for you here. You just need to read up on all the case studies and hope for the best.
posted by Cool Papa Bell at 2:03 PM on August 31, 2008

torpark, you're correct, this is within fair use, but the others who say there is no hard and fast are also correct. If you could tell us more specifically what your plans are, we could probably give a little more help. Otherwise, Cool Papa Bell has the right idea with, "The less you take, the more likely that your copying will be excused as a fair use."
posted by daboo at 2:14 PM on August 31, 2008

As I said, fair use is one thing, but check with the regulatory body where you are to see if you can use news footage in any case before you do your work!

I know BBC Breakfast had to pay royalties for using stills for certain times.
posted by mippy at 2:22 PM on August 31, 2008

Response by poster: The commercial is for display in the US, using US newcasts. The commercial will be 15 to 30 seconds long. It will feature the newscasts silenced, perhaps with scanlines added over them, with a voice-over. The newscasts will not be the heart of the commercial, they will only be shown for 5 to 7 seconds, and are not what the commercial is about. They are used to demonstrate a problem.
posted by torpark at 2:26 PM on August 31, 2008

Then you'll need permission from the station and most likely the newsreader. What if they don't wish to be associated with the problem you're illustrating? That's opening up to a lawsuit. Once you contact the station, you can ask any royalty-based questions you have.
posted by mippy at 2:55 PM on August 31, 2008

When was the last time you saw an excerpt of an actual newscaster in a commercial? Never? Why do you think that is? Fair use or not, no newscaster/news organization is going to stand for being depicted in your commercial.

You are just asking for so much trouble here that it can't be worth it. If you're making the commercial, it can't be that tough to get some hair spray, a blue background and a desk.
posted by sageleaf at 3:24 PM on August 31, 2008


For-commercial use is generally not allowed under Fair Use laws. The idea that there is an 'allowed length' for sampling is a persistent myth.

If you really want to do this what you need is a lawyer. A really good one, who specializes in IP issues.
posted by dirtynumbangelboy at 9:59 PM on August 31, 2008

1: Ask the news organization for permission.

2: Pay royalties for what you use.

3: Then ask a lawyer.

If you aren't willing to do the first and can't afford to do the second and third, you're being deeply foolish and I hope you're not making a commerical for my company because I'm likley to get served with papers too.
posted by Ookseer at 1:07 AM on September 1, 2008

Lawyer here, but I am not your lawyer. Unfortunately, you're not going to get a helpful answer here. Cool Papa Bell gave the only *real* answer. As you've said, fair use is a balancing test. It's not some statute somewhere that says "5 seconds and you're good. 6 and you need to pay royalties." It's highly fact specific and not subject to any hard and fast rules.

So, what it comes down to is, the news broadcaster can sue you for whatever they want, even half a second. You can raise a fair use defense for whatever you want, even if it's the entire broadcast. At the end of the day, a judge would decide. I don't know which judge you'd get, how they feel about fair use, and nobody but a paid attorney will be willing to do the hour or two of legal research (which costs money) required to get you even a best guess as to what's likely to be considered fair, and what's not.
posted by kingjoeshmoe at 11:48 AM on September 1, 2008

Response by poster: Okay good news. Turns out I can use the news in a commercial. ChillingEffects makes the analogous demonstration of copying a News website to your website. That limits the scope of the concern to being if the use is transformative, which it is.
posted by torpark at 12:43 PM on September 2, 2008

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