Is free really free?
July 8, 2014 3:37 PM   Subscribe

I am thinking about adding public domain films and shorts to a promotional DVD I am giving away. I wonder about old films and worry about lawyers. More inside.

The DVD is not about films but the media would be "treat" to lure repeated viewings increasing the likelihood of the viewer seeing my own advertisement content on the same disk. Are there issues to consider about the rights? These would be silents, '40's cartoons, odd "found" films of, for example London in the '20's. I would be happy to acknowledge the sources and add a disclaimer as to ownership. Just want the DVD to get repeated viewings, no charge.
posted by Freedomboy to Law & Government (5 answers total) 3 users marked this as a favorite
What do you plan to use as a source for these? Not all 40s cartoons are in PD. Not everything on is PD. Your use doesn't sound like Fair Use to me, as advertising is seldom considered Fair Use. Are you adding anything that might make this considered transformative use?
posted by Ideefixe at 4:13 PM on July 8, 2014 [1 favorite]

yeah, I'd be concerned as to how you were going to establish that such things were really in the public domain. Just being old isn't enough; just having the original rights holder be out of business or dead isn't enough, either.
posted by KathrynT at 5:52 PM on July 8, 2014 [1 favorite]

Also, your source itself may be copyrighted: even if the content is in the public domain, there may be a copyright claim by whoever digitized or restored it and created the copy you are using. Now, this claim may be without merit, but you would have to defend yourself successfully from the legal challenge to find out.

So, yes, there are issues to consider about the rights.
posted by Devoidoid at 7:04 PM on July 8, 2014 [2 favorites]

Are there issues to consider about the rights?

Yes, plenty. Ideefixe has the good starting questions. Just using it for something that isn't being sold isn't really enough. If you're not making it into some sort of art or criticism of the thing, it's unlikely to be fair use (check the Four Pillars here) which means you need to be really certain that the stuff you are using is truly public domain. The Internet Archive has a lot of good content, some of it public domain, but you'd want to stick to the Prelinger Archive if you wanted stuff that was free to use. Otherwise you need to make sure you understand what public domain really means. Rule of thumb has always been "Pre-1927" but it's more complicated than that. If your goal is to be unsueable (and keep in mind, people can sue about anything) you should stick to things that have clear rights statements with the content that you are using.
posted by jessamyn at 8:56 PM on July 8, 2014

Much of Prelinger can be licensed through Getty for commercial projects, which this use would be. It would be worth getting a legal opinion, especially if you need E&O insurance.
posted by Ideefixe at 10:07 PM on July 8, 2014

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