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

[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.

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.

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.

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.

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.

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).

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.