Is there a standard and proven "this is fair use" litany?
January 3, 2010 8:49 PM Subscribe
If I plan on posting a clip from a TV show to my blog, is there a standard "this is do-able under fair use" disclaimer that has been shown to keep lawyers at bay most of the time? Does it even matter if "fair use" is called out? And does my usage qualify as "fair use"?
I want to do this often, but the case in question right now involves a short clip from an episode of Mad Men. I want to embed it in a blog post because it evokes an idea about people and history that is one manifestation of what the blog post will be about. The connection between the video and the text is pretty abstract. But it's not a parody, and it's not a review. It's almost more like a "sample" or a "quotation."
I uploaded the clip to youtube, but apparently YouTube scanned it and found that it's copyrighted material, so I got an alert that I was trying to upload something that belongs to LionsGate, and therefore it was blocked worldwide. So this is what has me concerned.
I can do it without youtube, of course. I can serve it myself from Amazon CloudFront, for example. But it's more a question of what's the best way to protect myself if I do that, i.e. is there a standard litany wherein I say within the post "these clips are here under fair use" with a link to the wikipedia article about fair use? Does that even matter?
I want to do this often, but the case in question right now involves a short clip from an episode of Mad Men. I want to embed it in a blog post because it evokes an idea about people and history that is one manifestation of what the blog post will be about. The connection between the video and the text is pretty abstract. But it's not a parody, and it's not a review. It's almost more like a "sample" or a "quotation."
I uploaded the clip to youtube, but apparently YouTube scanned it and found that it's copyrighted material, so I got an alert that I was trying to upload something that belongs to LionsGate, and therefore it was blocked worldwide. So this is what has me concerned.
I can do it without youtube, of course. I can serve it myself from Amazon CloudFront, for example. But it's more a question of what's the best way to protect myself if I do that, i.e. is there a standard litany wherein I say within the post "these clips are here under fair use" with a link to the wikipedia article about fair use? Does that even matter?
Jinx's advice is pretty sound, except don't contact Lionsgate. You'll never get permission from them, it would cost more than it would be worth by a big margin even if you did, and all you'd really be doing would be alerting them to the presence of the clip on your site.
In reality, the worst that will happen is that they would ask you to take the clip down. Disclaiming it like crazy is a fine idea.
posted by Dee Xtrovert at 9:09 PM on January 3, 2010
In reality, the worst that will happen is that they would ask you to take the clip down. Disclaiming it like crazy is a fine idea.
posted by Dee Xtrovert at 9:09 PM on January 3, 2010
There is simply no way to formally determine whether a use constitutes "Fair Use" without a decision from a judge on the matter. Even the U.S. Copyright Office says:
I know of a much linked Fair Use copy of a New Yorker cartoon hosted at UNC Chapel Hill which explicitly states why the host makes the Fair Use claim.
A better question might be: what are the risks of hosting this on my site? These days, the most likely adverse outcome will be a Digital Millennium Copyright Act take-down request sent to the firm that owns your site, and they will take down the claimed infringement. The site owner may not wish to do business with you after that, but who knows?
In short, you probably won't be drawn and quartered for hosting short excerpts for commentary, but IANAL and even lawyers can't answer your question with certitude.
posted by fydfyd at 9:12 PM on January 3, 2010 [3 favorites]
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.But do take note of the 4 conditions in the layman's wording on the page linked above.
I know of a much linked Fair Use copy of a New Yorker cartoon hosted at UNC Chapel Hill which explicitly states why the host makes the Fair Use claim.
A better question might be: what are the risks of hosting this on my site? These days, the most likely adverse outcome will be a Digital Millennium Copyright Act take-down request sent to the firm that owns your site, and they will take down the claimed infringement. The site owner may not wish to do business with you after that, but who knows?
In short, you probably won't be drawn and quartered for hosting short excerpts for commentary, but IANAL and even lawyers can't answer your question with certitude.
posted by fydfyd at 9:12 PM on January 3, 2010 [3 favorites]
Response by poster: These days, the most likely adverse outcome will be a Digital Millennium Copyright Act take-down request sent to the firm that owns your site, and they will take down the claimed infringement.
Will they always, though? Seems like I've read about various cases where a C&D is issued, and the site owner fights it, and the content stays up. Are there any ISPs with a history of supporting their users in such cases? What if I got the site hosted in Russia?
posted by bingo at 9:26 PM on January 3, 2010
Will they always, though? Seems like I've read about various cases where a C&D is issued, and the site owner fights it, and the content stays up. Are there any ISPs with a history of supporting their users in such cases? What if I got the site hosted in Russia?
posted by bingo at 9:26 PM on January 3, 2010
In regards to Jinx's coment: IANAL either, but everything I know about copyright law and Fair Use indicates that there is no such thing as a "30 second rule" which allows you to excerpt copyrighted material without obtaining a license from the copyright holder.
The common practice of limiting music/video clips to 30 seconds on retail sites is a limitation imposed by the terms of the license(s) that the excerpting site has explicitly agreed on with the original license holder. It has nothing to do with Fair Use.
posted by melorama at 9:46 PM on January 3, 2010 [1 favorite]
The common practice of limiting music/video clips to 30 seconds on retail sites is a limitation imposed by the terms of the license(s) that the excerpting site has explicitly agreed on with the original license holder. It has nothing to do with Fair Use.
posted by melorama at 9:46 PM on January 3, 2010 [1 favorite]
You just need to think about whether this constitutes fair use. The disclaimer is meaningless and has no effect.
Seems like I've read about various cases where a C&D is issued, and the site owner fights it, and the content stays up.
A cease and desist is simply a letter making a request and informing the recipient of potential legal action. Fighting it consists merely of not complying. This forces the copyright owner to use the DMCA or sue.
Thus, the people you need to persuade are really the hosts who will be faced with the DMCA request.
posted by dhartung at 9:58 PM on January 3, 2010 [1 favorite]
Seems like I've read about various cases where a C&D is issued, and the site owner fights it, and the content stays up.
A cease and desist is simply a letter making a request and informing the recipient of potential legal action. Fighting it consists merely of not complying. This forces the copyright owner to use the DMCA or sue.
Thus, the people you need to persuade are really the hosts who will be faced with the DMCA request.
posted by dhartung at 9:58 PM on January 3, 2010 [1 favorite]
Will they always, though? Seems like I've read about various cases where a C&D is issued, and the site owner fights it, and the content stays up. Are there any ISPs with a history of supporting their users in such cases? What if I got the site hosted in Russia?
I fear you may be confusing what you think might be ethically correct and what the fact of the matter is. If you look at Title II of the DMCA you'll find that an ISP is strongly motivated to respond promptly to DMCA take-down requests. If the ISP doesn't, they then lose their "safe harbor" protection and become liable themselves for the infringement. It just isn't worth it to (e.g.) Amazon to fight your battle for you at the risk of major costs to them.
Host your site in Russia? Is it really worth that much effort to you? I don't know that it would necessarily prevent a take-down request from the rights-holder. One cannot puzzle out the global reach of more than a century's worth of international copyright law and treaties from an armchair. The answer to many questions similar to this have simply never been worked out by anyone in any venue, and even those that have been are always subject to revision.
There are certainly principles worth struggling for, but I don't think a blog post is worth trying to challenge global treaties for. If your question has become more academic than practical, then my earlier point stands: your question is unanswerable in the abstract.
posted by fydfyd at 10:29 PM on January 3, 2010
I fear you may be confusing what you think might be ethically correct and what the fact of the matter is. If you look at Title II of the DMCA you'll find that an ISP is strongly motivated to respond promptly to DMCA take-down requests. If the ISP doesn't, they then lose their "safe harbor" protection and become liable themselves for the infringement. It just isn't worth it to (e.g.) Amazon to fight your battle for you at the risk of major costs to them.
Host your site in Russia? Is it really worth that much effort to you? I don't know that it would necessarily prevent a take-down request from the rights-holder. One cannot puzzle out the global reach of more than a century's worth of international copyright law and treaties from an armchair. The answer to many questions similar to this have simply never been worked out by anyone in any venue, and even those that have been are always subject to revision.
There are certainly principles worth struggling for, but I don't think a blog post is worth trying to challenge global treaties for. If your question has become more academic than practical, then my earlier point stands: your question is unanswerable in the abstract.
posted by fydfyd at 10:29 PM on January 3, 2010
In real life I just don’t think anything is going to happen here. Given how hard it is for blogs to get noticed in 2010, this may be one of those “you should be so lucky to get a C&D” situations.
posted by johngoren at 10:36 PM on January 3, 2010
posted by johngoren at 10:36 PM on January 3, 2010
Response by poster: Well, fydfyd, it's not really academic. I am very interested in the art, if you will, of intertextual works involving video clips embedded in prose. I plan on doing a lot of it, on my personal blog and elsewhere, for profit and not for profit. I do not have a particular desire to cause trouble, but I am also not scared of controversy or letters from lawyers.
I thought of Russia because I recall an incident at a previous job, where my client's materials were somehow being misused on a Russian website, and we were unsuccessful, as I recall, in doing anything about it, despite lawyers being involved. But of course, many other aspects of the situation are different in this case.
posted by bingo at 10:36 PM on January 3, 2010
I thought of Russia because I recall an incident at a previous job, where my client's materials were somehow being misused on a Russian website, and we were unsuccessful, as I recall, in doing anything about it, despite lawyers being involved. But of course, many other aspects of the situation are different in this case.
posted by bingo at 10:36 PM on January 3, 2010
It's my understanding that it's difficult for an American company to sue a Russian website owner in an American court about a website hosted in Russia, because US courts don't have jurisdiction over what foreign people do in foreign countries.
If, on the other hand, you were an American website owner and you lived in America, and the website happened to be hosted in Russia, an American company could still sue you personally. However, it would still be hard for them to sue your web host, so that web host might not care about DMCA requests like an American one would; and if you made your website anonymous, that would make their efforts to sue you difficult as it would be hard to get your identity information from the Russian host.
IANAL, and you should consult one before intentionally getting into a costly international legal battle over a blog post.
posted by Mike1024 at 12:30 AM on January 4, 2010
If, on the other hand, you were an American website owner and you lived in America, and the website happened to be hosted in Russia, an American company could still sue you personally. However, it would still be hard for them to sue your web host, so that web host might not care about DMCA requests like an American one would; and if you made your website anonymous, that would make their efforts to sue you difficult as it would be hard to get your identity information from the Russian host.
IANAL, and you should consult one before intentionally getting into a costly international legal battle over a blog post.
posted by Mike1024 at 12:30 AM on January 4, 2010
Bingo, based on your avowed interest you'd be interested in the site In Media Res, which invites scholars to "curate" video clips and initiate scholarly discussion. This is usually organized by weekly themes (disclaimer--I have been a poster, though not for quite a while).
And in terms of your current question, you might be interested in their Copyright / Fair Use Policy, which runs
"MediaCommons is a strong advocate for the right of media scholars to quote from the materials they analyze, as protected by the principle of “fair use.“ If such quotation is necessary to a scholar’s argument, if the quotation serves to support a scholar’s original analysis or pedagogical purpose, and if the quotation does not harm the market value of the original text — but rather, and on the contrary, enhances it — we must defend the scholar’s right to quote from the media texts under study."
I think this kind of thinking applies very well to serious critical blogging, but note that this is only my own ethical opinion and has nothing to do with what could or will happen in your instance.
posted by Mngo at 11:40 AM on January 4, 2010
And in terms of your current question, you might be interested in their Copyright / Fair Use Policy, which runs
"MediaCommons is a strong advocate for the right of media scholars to quote from the materials they analyze, as protected by the principle of “fair use.“ If such quotation is necessary to a scholar’s argument, if the quotation serves to support a scholar’s original analysis or pedagogical purpose, and if the quotation does not harm the market value of the original text — but rather, and on the contrary, enhances it — we must defend the scholar’s right to quote from the media texts under study."
I think this kind of thinking applies very well to serious critical blogging, but note that this is only my own ethical opinion and has nothing to do with what could or will happen in your instance.
posted by Mngo at 11:40 AM on January 4, 2010
This thread is closed to new comments.
Most people think that 30 seconds or less can be considered "fair use"...
Also you could post a disclaimer that the piece belongs wholly and solely to LionsGate, etc and et al, and that no income or claim is derived from your "Fair Use" usage of the clip. Disclaim it to high heaven. I've found that CAN help.
YouTube is totally OUT OF CONTROL. I had a clip I posted WITH PERMISSION OF THE CREATOR AND OWNER, and they STILL yanked it! I haven't yet tried to repost it there WITH a disclaimer that I was using it with the permission of the owner...
You can also contact Lionsgate and ask them what their charge would be for you to use an x second clip on your blog for personal use only, etc.... It could be substantial, though. And of course, if they DON'T respond to your request for permission, go ahead. With disclaimer...
posted by Jinx of the 2nd Law at 9:02 PM on January 3, 2010