Is it fair use to perform one scene?
Last year a much beloved directing professor passed away and some of us are working on creating a DVD of her teaching for educational purposes. Her class was filmed one semester before she passed away and we are using this material as the basis for the DVD which will eventually be for sale to teachers and film students.
In her class students used scenes from previously produced screenplays, and directed actors using those screenplays. No clips from the actual films were used.
So the question is this, in order to put a section on the educational DVD of her discussing the breakdown of a script, or actors performing a scene from the script, who do we need to get permission from? Is permission from the author of the screenplay enough? Do we need permission from the studio who owns the screenplay for the film? Is this considered fair use?
– Diane
Los Angeles
Often the most interesting questions are the ones I can’t really answer. I’m hoping some readers with experience on the vagaries of copyright and entertainment law will weigh in with opinions and guidance. Craig? Ted?
In the meantime, I can offer some framework for what we’re discussing.
Studios own copyright on the underlying screenplays behind their movies. The scripts are considered works-for-hire — even if they were originally written as specs. But the credited screenwriter(s) retain the ability to publish the script, which is why I can offer my scripts in the Library without getting a call from Sony legal.1
I recently licensed a scene from my script for Big Fish to be published in a literature textbook. The fact that the publisher went through a lot of hassle to license one fairly short scene suggests that their legal folks believe that use of even a single scene falls outside of fair use. You may disagree, and the truth is I’ve given permission a lot of times when I didn’t think it was even necessary. But my hunch is that if you went to a copyright attorney, she’d say you had to get permission.
But from whom? Here’s where I suspect there’s an important distinction between printing and performing.
If you were simply projecting a page from a script on screen while you discussed it, that feels very close to printing. In fact, studios pay screenwriters a flat fee for the option of including the screenplay on the DVD.
But since your product includes actors performing the scene, you may cross into different territory. In my experience, studios seem to have all rights to film, stage, or otherwise mount a performance of material they own. For example, if Warners wanted to make a Charlie and Chocolate Factory musical, they could use any part of my screenplay without paying or even acknowledging me. That not hypothetical; Karen Lutz and Kirsten Smith wrote the screenplay for Legally Blonde, yet their names are nowhere on the Broadway show. The author of the screenplay material is considered to be MGM.
I think fair use should cover you, but I suspect it doesn’t. I look forward to hearing other opinions.
- I’ve avoided publishing scripts that are in limbo — abandoned but still owned by somebody — since they could theoretically be made at some point. Just this week I heard rumblings about Tarzan, a movie I thought long dead. ↩
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August 31st, 2009 at 3:24 pm
I’ll be interested to see what the answer turns out to be. To my mind, there shouldn’t be any difference between performing a copyrighted scene and putting it on a DVD that’s for educational use only, and performing a copyrighted scene in an acting class that charges tuition.
August 31st, 2009 at 3:36 pm
My question to you is why is it important to sell this teacher’s work? I imagine the profits would go to paying expenses or to a charity, but a better understanding of that would go a long way in determining an answer for you.
So my other question is, couldn’t you give these DVDs away to friends and family? I think that would eliminate the copyright issue. Be warned I am not an attorney, so these are just my musings. I also look forward to hearing the answer on this one.
Thanks for posting this!
August 31st, 2009 at 3:41 pm
If it’s “for sale” it must be licensed. You cannot profit from someone else’s intellectual property. It’s why copyright was created. But if you gave it away, you’d be covered under fair use.
August 31st, 2009 at 3:49 pm
I know for a fact, if you’re planning to use something from a Woody Allen script, you do not have the right. But that is a special case. Woody Allen doesn’t believe in producing any one portion of a complete work… you’d probably have to get the rights for the whole thing. That said, those works are also specifically in his name (again special case). Don’t know about other works considered.
August 31st, 2009 at 4:14 pm
It’s a CYA world. Get permission from the author, the studio, three hairdesssers, a personal trainer, and a yoga instructor just to be safe.
August 31st, 2009 at 5:50 pm
Selling it or giving it away makes not one whit of legal difference under copyright law. And keep in mind that Fair Use is only a defense if you’re sued, not a right.
The bottom line is that the legality of it makes no real difference. If you get sued you have already lost. Even if you prevail in the suite, the legal fees will eat up any possible profits you might make and then some.
Such is the tyranny of our legal and copyright system. Like health-care, justice is only for those who can afford it.
August 31st, 2009 at 5:57 pm
I officially become a law student in less than 48 hours (well, I already got homework, so maybe I’m already a law student :P ). I’ll try and get an upperclassmen with copyrights under their belt to answer this one first chance I get. :)
August 31st, 2009 at 5:57 pm
Sounds like the above comments are right on. If you’re making a DVD for sale, you gotta get the rights.
But if the DVD is not for sale, then it might get tricky. I say go for it.*
–
*This statement has been retracted on advice of counsel.
August 31st, 2009 at 6:32 pm
“fair use” is a really complicated legal issue… i’m no lawyer, but i recently had to deal with it in the production of a documentary that used a clip from a well-known movie.
there are no hard and fast rules of fair use (for better or worse). but you can kinda “keep score”:
–you’re selling the finished product for profit (strike against)
–you’re using the copyrighted work specifically for educational value (point for)
–you’re using a significant portion of the copyrighted work, likely more than a few seconds worth (strike against)
–you’re not infringing on the ability of the studio to market the copyrighted work or cutting in on any theoretical profits: no one would purchase this dvd and think “cool, now i don’t have to purchase the dvd of the original movie!” (point for)
–you can’t possibly substitute something else in for the copyrighted work, since the video footage is already shot and cannot be replaced with other footage of the same teacher reading from a different piece of work (point for)
no one single issue above determines fair use on its own…it’s all about the overall picture, and there are many other issues to work with… for instance, how much of your DVD consists of readings from the copyrighted work? if you’re releasing a 2 hour dvd and only 2 minutes of it consist of the reading, then it’s more likely you can claim fair use because it’s not a “significant” portion of the finished work. but if you’re using the readings to cover 30 minutes of a 2 hour dvd, that’s a significant portion of the finished product and it would work against you. a lot of it depends on how you use the work and how much of it you use and in what way you’re using it.
i’d say you’re on the fence of fair use. the best move would be to contact the studio and try to work out a licensing deal just to make sure you’re covered…
BUT…when i tried to contact the studio who owned the rights to the movie i wanted to license for my documentary, the studio quoted us a ridiculously high price: it would’ve required 1/4 of my film’s entire budget to license 30 seconds of footage, plus we had to get a major A-list star’s personal permission. that’s another element of fair use: the copyright owner has to be “reasonable” in allowing you access to the material. we counter-offered a lower monetary offer for just 10 seconds of footage, they stood by the same price that they’d already quoted and wouldn’t budge. the fact that they weren’t even willing to negotiate based on the amount we were using, nor out of respect for our budget (not to mention the clearly impossible hurdle of getting the actor’s permission), seemed “unreasonable” to us.
but keep in mind that terms like “significant” and “reasonable” are open to interpretation in a court of law…
bottom line: it depends. :)
here’s a good starting place for research on fair use doctrine:
http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/
it’s just the tip of the iceberg, though. the important thing to remember is that no matter how good of a fair use case you THINK you have, you can still get sued (look at Shepard Fairey vs. Associated Press). so it’s often worth it to obtain permission as a means of insurance, if such permission won’t destroy your budget. most major film studios have a department dedicated just to rights and clearances, so you could probably figure out who to contact by looking at the studio’s website. (be sure to stress as much as possible that the dvd is for EDUCATIONAL purposes!)
good luck!
(also, i’m pretty sure i know which teacher and which copyrighted work you’re talking about and i’m excited to hear that it’s coming along!!!)
August 31st, 2009 at 6:57 pm
Just want to clear something up: this issue is not just a matter of whether the DVD is being sold or given away for free. There are several factors that go into determining fair use, and commercial gain is just one part.
You can still have “fair use” of material in a product you are selling or not have “fair use” of material in something you are giving away for free.
The same goes for “educational purposes.” Just because something is educational doesn’t mean that it is automatically fair use.
September 1st, 2009 at 5:51 am
@Hayofray you should be careful about providing opinions when you don’t know the answer. While many people have already corrected you, your post came early and I guess we all are concerned that someone read your post and stopped there.
To put too fine a point on it: SALE OR NOT does not change the fair use analysis. And, yes if you asked a lawyer s/he would tell you to get a license to use the material. However, this is not because what you are doing is not fair use, but because the lawyer who tells you not to worry about a lawsuit opens him/herself up to liability to you the client for giving advice that turns out wrong.
And just to make sure that the person who still wants to believe that whether “sale” makes a difference, think about those movie review television programs (Ebert and Roeper or whomever) those are for-profit ventures and are still fair use because they are for the purposes of commentary/criticism, which is one of the categories of use that is within “fair use.” Ebert and Roeper don’t get a license because they use a small amount of the movie to make their critical points. This is specifically recognized as one type of fair use, as is use for educational purposes.
However, if you hope to make any profit from the video you are making you should expect to pay for the material you are using. That is only fair. If you don’t want to pay for it, make sure that whatever you use is indistinguishable. If the scene cannot be identified from what you see, there can be no copyright infringement. So, if it is a scene from “Back to the Future” make sure that no one says “flux capacitor” on screen. Certainly there are ways to edit the material. After all this is about the teacher, not the movies.
September 1st, 2009 at 7:08 am
Just for the record, there’s a lot of mis-information in the comments. For example, Woody Allen doesn’t have the legal ability to revoke fair use for his work. If your particular usage falls under fair use, you can do it whether he likes it or not. That’s kind of the whole point.
Fred and others seem to have covered the other big points I wanted to make, so I’ll just add that while no sane person should take Wikipedia as legal advice, the article on fair use is (as far as I understand it) pretty accurate and a good way to get a better sense of making your own judgement.
http://en.wikipedia.org/wiki/Fair_use
And most crucially, it makes it clear that while Fair Use is a good and valid defense, it doesn’t prevent someone from taking you to court in the first place and shouldn’t be thought of as a magic wand to make lawyers go away. Which is likely why most lawyers would recommend you get permission anyway.
September 1st, 2009 at 7:40 am
As John said, the studios own the “performance rights” to the scripts. It does not matter if they are performed in a $100mil budget movie or in someone’s basement, you need to negotiate rights with the owner.
That said, your lawyer can make a decent Fair Use argument here if you are sued by the studios. Nevertheless, you will end up paying your lawyer $300-500/hr in what adds up to tens of thousands of dollars in legal fees to make that argument. It is in your best interests to play it safe and negotiate a licensing arrangement with the studios. It will not be too expensive and will basically amount to a small percentage of your projected profits on the DVD if you negotiate it well.
Only newspapers can really ever safely rely on Fair Use to keep them from getting sued in the first place because Fair Use as applied to newspapers is such well settled law. Everyone else plays it safe and negotiates licensing to avoid the possibility of an expensive lawsuit.
Hope that helps.
September 1st, 2009 at 7:46 am
My experience as a college prof teaching acting/directing is that you’re almost always safe as long as the endeavor is PURELY educational. There are some writers that expressly forbid use of their material (Woody Allen and Neil Simon are two that come to mind) for even educational purposes. In fact, I think Simon had gone as far as to use legal action against students who used his stuff in college forensic competition.
But selling the DVD adds complications and frankly, as a writer, I’m not sure I’d want amateurs performing my work out of context. It’s been said a few times here, but CYA and get permission.
September 1st, 2009 at 8:15 am
Here’s what you should do, in six easy steps:
1) Get permission from the teacher’s estate. After all, she created this educational material.
2) Make the DVD and include all the scenes you deem necessary.
3) Send the finished video (or at least a decent roughcut) to the author of the screenplay and include a nice letter. This is common courtesy.
4) Send a copy to the studio (its legal dept I suppose) to notify it of your project. Simply tell them that you regard the use of the scene(s) in this context as fair; ask if they have any problems with that understanding.
5) If the studio refuses to grant its permission (or wants to make you pay) let the screenwriter know. He/she needs to know how bloodyminded they are. Perhaps the writer knows someone and can make phone calls on your behalf!
6) OK, if there’s no way you can get permission you’ll just have to cut out the scene(s).
:)
P.S. Perhaps it’d be a good idea to include not one scene but several. Then you can contact several authors and several studios/rightholders and some of them are bound to give you permission (without charging you for it).
September 1st, 2009 at 10:08 am
@zuckerman — wow, it’s a good thing Neil Simon never found out about the regional high school drama competitions I was in. We used his scenes over and over and over again…. Now I want to sign this “anonymous” so he doesn’t go looking….
September 1st, 2009 at 12:14 pm
S-t-r-e-t-c-h . . . I focused on IP law in law school, but I don’t get to use it much these days.
Most of the info here is good, so I don’t have too much to add. I just wanted to reinforce the idea that fair use is an affirmative defense, meaning it’s something that you have to assert – and that you will bear the burden of proving – at trial. You may avoid some serious hassle if you just ask pretty please.
Also, John, if you retain the ability to publish your scripts, that’s because you’ve contracted to keep that right. That right is not a legal imperative, and I don’t think it’s necessarily the case that other writers would have the same contract terms as you. Also, I would think that projecting your words onto a screen would be considered a public performance, rather than publishing.
Lastly, asking nicely doesn’t ruin your right to assert fair use. But, as others have asserted, based upon the facts as described by Diane, fair use probably wouldn’t hold up as a defense anyway.
September 1st, 2009 at 12:19 pm
@Anna–i think the problem with this approach would be the extra work involved in editing and completing a DVD and then potentially having to go back and re-cut the whole thing…
studios just want their money, they’re not going to look at the DVD and base their decision on its merits. and i doubt the author of the material will be able to sway the studio one way or the other (if the author even bothers to look at the DVD anyway).
the studio will almost certainly want some financial compensation for the use of the material, they’re not going to say “oh yeah, that’s fair use…no need to pay us!” they’re going to try to get what they can.
so really a better process would be:
1.) contact the person at the studio in charge of rights and clearances and explain exactly, in very specific detail, what you’re doing with the work.
2.) they will quote a price. if it’s affordable, hooray! if it’s too high, maybe submit a counter offer or try to negotiate by offering to use less of the work.
3.) if the price is still too high, you have to weigh the following options:
a.) don’t use the material. b.) use the material anyway, hoping that the DVD is small enough of a release not to merit any legal attention from the studio, but preparing a fair use case in case they decide to go after you.
yes, you’ll likely spend more on a lawsuit than you would have on the license, so keep that in mind. but you may also get a cease and desist letter before it gets to that level, in which case you can just stop putting out the DVD or you can re-edit it (also costly options).
bottom line: try to get permission first, then go from there.
September 1st, 2009 at 1:17 pm
This reminds me of an incident a while ago when kids from some high school did a theater performance of Clerks. Studio/Kevin Smith got wind of it and shut it down. My apologies, I couldn’t find a link.
This DVD seems like such a small thing that it probably wouldn’t be a big deal. My graduation video at my old high school used clips of movies in it, and the kid responsible for making it most certainly didn’t get permission.
To strengthen your case, I’d go for the non-commercial way, maybe opting for a voluntary donation (that’s really mandatory by way of guilt).
Then again, my advice is basically telling you to circumvent whatever laws may exist, so take it with extreme caution. If I was the careful sort, I would follow Jeff’s advice.
September 1st, 2009 at 3:27 pm
John,
I thought that dramatic stage rights were one of the separated rights that screenwriters retain (along with publishing rights, as you pointed out.)
checked
Mr. Mazin seems to agree with me -
http://artfulwriter.com/?p=44
No idea what happened in the case of “Legally Blonde”, but it seems to me that those writers should have been paid/credited/etc.
September 2nd, 2009 at 6:35 pm
My suspicion is that this is a Nina Foch project, which I think should help things considerably — honestly, she was so beloved by so many people she worked with, I would think you could find one advocate at each studio to plead the case of the scenes included.
[Beginning of non-professional legal advice]
Every time I’ve tangled with issues of copyright and usage, the issue was that if the the corporation did not pursue this infringement, it would leave the door open for future parties to do the same and get away with it because an early instance had gone un-prosecuted. However, if you get permission from the copyright holder of each text, they won’t have left any doors open, and you’ll be able to sleep at night knowing there isn’t a lawsuit around the corner.
[End of non-professional legal advice]
By the way, I would buy said DVD in a hot second, so I hope you’re successful.
September 3rd, 2009 at 11:46 am
You might find the educational material on fair use at the Center for Social Media helpful to you in coming to your own conclusions on fair use. They explain the logic of fair use, which you can apply to your own situation. (While all of our publications have been vetted by the best lawyers in the field, its important to note that we’re not lawyers and cannot offer legal advice.)
We have three publications that are all free and available on line that highlight fair use in different contexts.
All can be found at: http://www.centerforsocialmedia.org/fairuse
Documentary Filmmakers Statement of Best Practices in Fair Use Code of Best Practices in Fair Use for Media Literacy Education Code of Best Practices in Fair Use for Online Video
Best of luck Micael Bogar
September 5th, 2009 at 10:02 am
I didn’t have time to read all the above comments, but I suspect you would also need to get the performers permission to use their performance in the DVD…?
September 12th, 2009 at 10:45 am
The industry term for this – or at least the term at Universal – is a “text excerpt.” And yes, they want you to pay through the nose for the tiniest use of previously published/filmed dialogue. If you have a connection at the studio, you might be able to get a freebie.