What is the legality of making a site like www.instantboss.org or a movie sound board in the state of PA?
July 14, 2009 8:16 AM   Subscribe

What is the legality of making a site like www.instantboss.org or a movie sound board in the state of PA?

I am wondering whether it is actually legal to use sound clips, pictures, video clips, etc. From a TV show like SNL, movie, or otherwise to make something like a website or soundboard?

Are the makers just hoping no one will say anything? Are they protected in some way? Can they make a profit from their site/soundboard? Are they just counting on the fact that the big corporation will not come after them?

Is there a certain length of a clip or how the clip is used that CAN make it legal? Is their anything with fair-use that makes it okay? Do the clips have to be copyrighted? How can you tell if they are?

Sorry if this is a lot of questions but I am trying to figure out how so many people can make things like this and not fear the wrath of big corporate money and lawyers. Also, if the state where it is being made matters, I am specifically wondering about PA.
posted by xdeliriumx to Law & Government (4 answers total) 2 users marked this as a favorite
I know almost nothing about intellectual property law, other than that you might want to look into the "fair use" doctrine and think about whether it might apply. For example, see the fair use paragraph at the bottom of this Borat soundboard, which can direct you to more information.
posted by bunnycup at 8:29 AM on July 14, 2009

For starters, this isn't really an issue of state law. Copyright is exclusively federal. States do retain some of their own trademark laws, but even that's been largely displaced by federal law. Article I, section 8 of the Constitution specifically grants Congress the ability to legislate in the area of copyright and patent, and it has done so. As of January 1, 1978, there are no state-granted rights in copyright (17 U.S.C. 301).

As to what constitutes, fair use, you're going to want to look at 17 U.S.C. 107, which describes limitations on exclusive rights in copyright, i.e. fair use. The length of the portion excerpted for fair use is indeed one factor considered (107(3)) but so are the purpose of the use (107(1), the nature of the copyrighted work (107(2)), and the potential effect upon the market of the copyrighted work (107(4)).

This is a balancing test; the courts deal with fair use claims on a more-or-less case by case analysis. But there are factors which cut towards sites like this one being fair use. First of all, they're using a minuscule portion of a copyrighted work. Second, the use is fairly "transformative," i.e. it's doing something that the original work does not. Third, it's hardly likely to diminish sales of the original work, as it does not approach being a substitute. Then again, there are factors which cut against it. The original work is a creative work with which someone is trying to make a profit, and the use here isn't educational or critical. So you've got factors for and against. Note that you don't just count up the factors and get a result; the court will weigh the evidence as seems reasonable to it. So it's kind of a toss up. But because the use is pretty innocuous, it's likely that the copyright holder will judge going after this guy to be more trouble than it's worth.

That's just a knee-jerk analysis. Don't consider it legal advice for your own hare-brained schemes. Read something more substantive.
posted by valkyryn at 8:33 AM on July 14, 2009 [1 favorite]

IANAL, but the laws of PA are irrelevant to this issue as it is a copyright case and that's Federal law.

Instant Boss doesn't seem to be using any actual audio from the series (I've heard the song on the show and from the CD and it sounds a lot different."

The photo of Andy Samberg might be the most actionable. They could send a cease and desist to take that down....but unless there's somehow a trademark on "Like a Boss". I think the rest of the site is okay.
posted by inturnaround at 8:35 AM on July 14, 2009

I am trying to figure out how so many people can make things like this and not fear the wrath of big corporate money and lawyers.

I've played in this arena a few times and two notions come quickly to mind.

1. if the work I'm doing is mostly of a private, non-commercial variety (ie: a "fan" exploration of something that interests me), I just ignore the legal concerns altogether and have fun. Thus far, this attitude has only once come back to bite me and that involved a quickly slapped together punk rock video that Canada's Much Music refused to play because it used uncleared news clips (mostly from CNN). But as I had never imagined the thing was going to get national, televised airplay anyway, no great particular loss.

2. if I'm involved in a commercial project, with significant money and time invested, I always "do the right thing" (legally that is). This can be as annoying as hell but it is what would I call "professional behavior". As for what the "right thing" is (ie: what constitutes "Fair Use"?), I'd start with bunnycup's and valkyrn's comments above.
posted by philip-random at 8:56 AM on July 14, 2009 [1 favorite]

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