Friday, August 14, 2009

Video Fair Use: Two year rule?

Dear Rich. Would it generally be considered "fair use" to make videos using short (less than 30 seconds) clips of different movies along with original audio to talk about historical times, places or themes? These videos would be put online for people to watch (not download). Also, I read somewhere that educational "fair use" of multimedia projects only allows them a life of two years. Does that mean if I create an educational video  --  say, about WWII history) using my own historical "reporting" audio over a few images and 30 second clips from different movies about WWII -- and put it online for people to watch (not download) and learn from, that after two years it has to be retired? According to the Dear Rich staff, the rule to which you refer is part of the Conference on Fair Use (CONFU) Guidelines (Sec. 4.1, Time Limitations). These guidelines for multimedia use -- and we emphasize they are only guidelines, not law -- apply if you are an "educator" and your multimedia use is "for curriculum-based multimedia projects and used as a teaching tool in support of curriculum-based instructional activities." In other words, your use should be part of a course that is taught -- usually in a series of episodes or classes. It is not enough to claim your work is "educational" to seek protection under the guidelines. 
Streaming ... But No Download
In addition, you are infringing by copying and displaying the clips, regardless of whether people can download the material. (By the way, modern software products make it possible to capture any streaming video.) You may be able to successfully claim fair use -- courts have considered clips of  15 seconds and 41 seconds to be fair use (scroll down this page to the audiovisual cases) and in addition, your use seems transformative. By the way, there is also a code of "best practices" for creating online videos and you may want to take a look at that, as well as the Yes, You Can! manifesto.