Is it fair use?
March 8, 2014 9:17 AM   Subscribe

We heard about Chef Keith earlier this year. Now the folks at Found Footage Fest wrote: "For the first time in FFF history, we've received a "cease and desist." Apparently a news station didn't think Chef Keith was funny. We think it's a clear case of fair use". What is the correct answer? Is it fair use?
posted by josher71 to Law & Government (8 answers total)
This is in the USA, by the way.
posted by josher71 at 9:20 AM on March 8, 2014

There are four factors that can be used to determine whether or not something's fair use, but to quote the Stanford Copyright and Fair Use site:
Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as discussed in detail below. It’s important to understand that these factors are only guidelines that courts are free to adapt to particular situations on a case‑by‑case basis. In other words, a judge has a great deal of freedom when making a fair use determination, so the outcome in any given case can be hard to predict.

The four factors judges consider are:

the purpose and character of your use
the nature of the copyrighted work
the amount and substantiality of the portion taken, and
the effect of the use upon the potential market.
TL;DR: we'll find out when it goes to court and a judge decides.
posted by The Michael The at 9:24 AM on March 8, 2014 [3 favorites]

Are you asking if it is a "fair use" situation for them to post the news program video onto an online site to show how funny they were? I don't think it is. There's no transformation of the work, it's not an excerpt for critical review, it's just posting it to show that it got on the air. Seems like the video isn't theirs to post.

But granted, we're not the court.
posted by BillMcMurdo at 9:42 AM on March 8, 2014 [1 favorite]

Where did FFF post about the C&D? There's no transformational use, parody or commentary, as far as I can tell, and they're selling the segments on a DVD, too. I doubt this will go to court.
posted by Ideefixe at 9:43 AM on March 8, 2014 [1 favorite]

Unless there's some pretty clear case law leading up to a specific claim, Fair Use cases like these need to go to court, or at least need to have lawyers talking to lawyers about it. It doesn't really matter what random people think. The Michael The outlined the things that people look at when making these determinations. These guys are making money selling someone else's broadcast. That's not really even in a Fair Use ballpark, to my mind and I'm a little surprised they're going that way because I suspect they know that.

I'm a huge Fair Use advocate and I don't say this lightly but I think too many people have vague ideas about what Fair Use is and, more importantly, what it's FOR. This is not what it's for and whether or not the bit was funny isn't relevant to whether they're using someone else's copyrighted material in a non-legal manner. And, again, whether they should be able to do this is in a general sense also a non-issue. I believe more things should be available for the public to view and use but Fair Use is a specific legal exception to copyright law and this doesn't look like it to my (non-lawyerly) eyes.
posted by jessamyn at 9:49 AM on March 8, 2014 [1 favorite]

I'm friends with them on Facebook which is where I saw the question.
posted by josher71 at 10:34 AM on March 8, 2014

Are you asking if it is a "fair use" situation for them to post the news program video onto an online site to show how funny they were? I don't think it is. There's no transformation of the work

This is correct. We never know how a court might rule because a judge might have an aneurism or something, but taking someone else's copyrighted material and posting it online is exactly, precisely 10000% what fair use is not.
posted by drjimmy11 at 10:47 AM on March 8, 2014 [1 favorite]

As others have said, whether something is fair use is a case-by-case determination.

However, it's certainly not correct that "taking someone else's copyrighted material and posting it online" can't be fair use. The amount taken is one of the factors, not the deciding one, and there are certainly cases where posting an entire work is fair use. For those wanting to get deep in the legal weeds, here's a law professor amicus brief that lays out when and why using an entire work may be fair use.

This Code of Best Practices for Online Video is also a good start (and less technical) for people trying to make fair use decisions when posting video online.
posted by mercredi at 12:18 PM on March 8, 2014

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