Tuesday, July 2, 2013

Wants to Use Northern Exposure Stills, Clips and Song in Documentary

we have nothing to say about
this poster but thought if we
added a caption we could
claim it was fair use! 
Dear Rich: I am filming a documentary that will be distributed FREE OF CHARGE on the internet. Pro Bono. The documentary is about the TV series Northern Exposure and the title of my documentary is "Our Town Cicely" In my documentary I will be attempting to use as much material as possible in a "Fair Use" context. I know you are not a lawyer and I do not hold you to any advice, but in your opinion can I use images or pictures of the cast members from the show in my film? Also I would need to use some of the clips from the TV series too. It is my idea that I can use the clips as long as I am critiqueing them or at least putting subtitles with some narrative commentary at the bottom on how this scene was relevant and how good it was etc. I also wanted to use a song from the show titled "our town" by Iris Dement. But it is owned by Warner Brothers. Your idea that adding subtitles creates a "fair use" exemption is fashionable and even big shots are making similar claims. However, we think that adding a caption is like putting an Instagram frame on a photo ... by itself, it won't be enough to defeat an infringement claim.
Claiming fair use. There are two big hurdles with fair use: (1) you will only know if it is fair use if a judge confirms it, and (2) you probably can't afford to find out. Your best option is to review previous fair use cases (and we've assembled a compilation here) to see how courts rule. It's true that some factors are in your favor: it's a not-for-profit factual presentation and you are commenting upon the show. But there are other factors in play, for example how much material is used -- a snippet of a song versus the whole tune, two seconds of a clip versus the whole scene, etc. And are you really commenting on the material or reproducing it for its entertainment value? As you'll notice from looking at case summaries, many artists, authors and entrepreneurs have failed with fair use claims when deconstructing TV shows, movies, and books. For that reason, we can't say whether your fair use argument will win the day.
That Said Dept. We hate to see you ditch your plans for a Cicely documentary. Perhaps if you keep things below the radar, nobody will notice or care. For example, if you avoid using a copyrighted song, you won't trigger complaints from sites like YouTube that use audio filtering software. On the other hand, you could also take the more risky approach of, "What are you going to do about it?" and see how far you can go before (or if) you get a cease and desist letter. BTW, please note the comment below, referring to American University's fair use guidelines for documentary filmmakers.