Can We Use Apes Clip in Surf Video?

Dear Rich: We are filming a travel series with a professional surfer highlighting important cultural and historic locations. One location is the beach where the ending for Planet of the Apes was filmed (the scene with the Statue of Liberty). We filmed the surfer re-enacting Charlton Heston beating the sand as was done in the original film. We'd like to use 20-30 seconds from Planet of the Apes. Can we claim fair use? 

We think you have a good basis for claiming fair use because you're commenting on the film. Your purpose is transformative -- that is, you're using the clip to highlight the location, not as part of a narrative about anthropomorphic primates. 

Reality check. Unfortunately, it's not enough to say, "This is a fair use, leave us alone." You can only prove fair use in a courtroom after you've been sued. That means that if 20th Century Fox sees your video and wants to hassle you, they can force you to prove fair use in court (an expensive proposition). If you want to use the clip and take your chances, that's understandable. Plenty of clips fall under the radar and Fox lawyers may not wish to devote energy to your claim and instead pursue others with deeper pockets. If you proceed, here are some tips for use of online video: keep the clip as short as possible and if you can, shrink the frame -- for example picture in picture or split-screen. A favorable fair use ruling is more likely the less you take.