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Can I show 5-min clips of various movies in a business seminar I'm hosting under the Fair Use Act?

Hoffman Estates, IL |

Of course, these clips will be relevant to my presentation and will be used to illustrate a point that I'm making.

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Attorney answers 6

Posted

Fair Use is a defense to infringement. You need to keep in mind that no matter what anyone suggests here, if the copyright owners dislike what you are doing with their material they can take legal action and only then will it matter whether you have a valid fair use.

What you described would likely be considered infringement technically unless you are offering specific commentary on the the material itself and not just using it to make some broader point. Educational institutions who use material like this in a non-commercial way and in the classroom learning setting for example would clearly fall within a fair use exception.

You do not get to use another's IP to make up your course materials. But this I bet you already know. Having said that, the odds of you being held accountable are slim to none unless you are doing this on a large scale because this is not the kind of infringement anyone is policing against really, but you certainly never know for sure. I also think this kind of use is really on the line regards to a fair use analysis so you may want to discuss this over in more detail with an IP lawyer just so you know where that line is exactly.

Most of us here, including myself, offer a free phone consult.

Best regards,
Frank
Natoli-Lapin, LLC
(see Disclaimer)

The law firm of Natoli-Lapin, LLC (Home of Lantern Legal Services) offers our flat-rate legal services in the areas of business law and intellectual property to entrepreneurs, small-to-medium size businesses, independent inventors and artists across the nation and abroad. Feel free to call for a free phone consultation; your inquiries are always welcome: CONTACT: 866-871-8655 Support@LanternLegal.com DISCLAIMER: this is not intended to be specific legal advice and should not be relied upon as such. No attorney-client relationship is formed on the basis of this posting.

Bruce E. Burdick

Bruce E. Burdick

Posted

While that is legally correct, as a practical matter, copyright owners take into account whether or not there is likely to be a valid fair use defense raised before ever asserting a claim for infringement, as no one wants to go to their client and explain why they recommended a suit, and then lost. On the other hand, if the copyright owner comes to the lawyer and says , "I know they might have a fair use defense to them anyway and try to get this stopped" than most lawyers will do just that and you will have the expenses of defending a lawsuit that you may not be able to afford. So, I think attorney Natoli is absolutely correct and telling you, in essence, not to tweak the Tiger if you do not need to tweak the Tiger.

Jon Kenneth Perala

Jon Kenneth Perala

Posted

Good point on the plaintiff evaluating possible fair use defenses before deciding to file suit.

Posted

There is no such thing as the "Fair Use Act". The doctrine of fair use provides a defense to claims of copyright infringement, Generally, the doctrine allows limited use of copyrighted materials for purposes of journalism, education, academics, criticism and parody. Courts consider many factors in a fair use analysis, the most important of which are the nature, purpose and character of the use, the amount of copyrighted material used, and the impact of the use on the market value for the copyrighted work. The impact on market value is the most important factor. Another important consideration is whether you use a greater portion of the copyrighted work than ordinarily would be necessary for a proper purpose, such as journalism or academic criticism. While no one can predict how a court will rule on a fair use defense, you have an uphill battle here. Your "business seminar" is a type of commercial use that is not ordinarily associated with the fair use doctrine. Further, you are proposing to use five minute clips from movies---that is a very substantial use of copyrighted materials; probably much more than you reasonably need to make your educational or academic point. Further, your use of such long clips may have an adverse impact on the market value of the movie as a whole. After all, copyright owners of movies often get paid for licensing relatively clips of their films for various commercial purposes. Your use diminishes the market value for such clips.

Finally, and most importantly, fair use is only a defense to a law suit. Even if you have a good fair use argument, this will not stop you from getting sued. Once you are sued, you will need to retain legal counsel to make your fair use argument, and this is expensive. It takes tens of thousands of dollars if not six figures in legal fees to mount a defense. If you have a sufficient war chest to fund this defense, then you could make reasonable choice to take this risk. But if you don't have the financial means to defend such a law suit, then this might not be a wise risk to take.

Bruce E. Burdick

Bruce E. Burdick

Posted

"While no one can predict how a court will rule on a fair use defense." No one, that is, except a licensed attorney having sufficient expertise to take a reason prediction based on established precedent and legal interpretation. Accordingly, if you want such a prediction you need such an attorney.

Posted

I agree with my colleague, Fair Use is only a defense to a copyright infringement claim meaning you would have to prove it after being sued.

Bruce E. Burdick

Bruce E. Burdick

Posted

And that means That predictions should be made only by a licensed attorney having sufficient expertise to take a reason prediction based on established precedent and legal interpretation. Accordingly, if you want that prediction you need that attorney.

Posted

You either show the actual presentation to an attorney, along with the sources, and a pay a fee for advice or you make your own estimate. I am attaching to assist you my legal guide on fair use.

Licensed in Maryland with offices in Maryland and Oregon. Information here is general, does not create a lawyer-client relationship, and is not a substitute for consulting with an experienced attorney on the specifics of your situation.

Bruce E. Burdick

Bruce E. Burdick

Posted

Nice guide, You would do well to read it, questioner.

Posted

Depending on the facts, a Fair Use defense could be asserted. But as the other attorneys point out, Fair Use is based on a four-factor test with no bright lines of demarcation. So although you can assert the defense, you may not prevail in court. It may help your cause if your business seminar is "educational" and your use of the film clips is "transformative." Transformative use could be shown if you are using the clips to educate your audience about some greater principle of business, as opposed to merely entertaining them. But, transformative use is only helpful, and not dispositive of the issue. All four factors, as already mentioned in the other attorney posts, are important. While not a factor bearing on Fair Use, your risk of liability may be practically reduced if you are only displaying the film clips ephemerally in smaller live seminars, and not distributing copies of them, or broadcasting them over the Internet or on a website.

No attorney client relationship is created with this post and no legal advice has been rendered. This is for general informational purposes only and does not apply to any specific set of facts which have been reviewed by me. The information contained in this response has not been verified and is not necessarily accurate or reliable, or applicable to any particular jurisdiction. Always hire a licensed attorney to represent your legal interests.

Bruce E. Burdick

Bruce E. Burdick

Posted

"It may help your cause if your business seminar is 'educational' Note that factor one of the statute 17 USC 107 is expressed as "(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; whether such use is of a commercial nature or is for nonprofit educational purposes" , and this business seminar is surely commercial and for profit. The phrase I think better relied on is: "use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." The seminar is surely for purposes of comment, likely for criticism in some respects, surely for news (as to current status of the subject), certainly for reporting, certainly for teaching, certainly for scholarship and certainly for research. So fitting squarely within that language is fairly persuasive in comparison to being clearly outside factor one. Don't use factor one in this case as it cuts against you.

David M. Slater

David M. Slater

Posted

Good points, Bruce. Thank you for your comment.

Bruce E. Burdick

Bruce E. Burdick

Posted

Thanks. I have given many seminars and used lots of clips and that line of logic has always been persuasive to those objecting. [Knock on Wood]

Posted

There is no such thing as "the Fair Use Act". There is 17 USC 107, the fair use section of the Copyright Act. Your commercial use seems to be for the purpose of commentary, and seems to be likely to be just what you need for purpose of the commentary and should not Adversely affect sales of the movie itself. On the contrary, I would think it might enhance sales – your students might want to see the entire film after having seen the five-minute clip. On balance, I think you're okay legally, although I think a five minute clip is much longer than you would need. I would suggest you hold the clip to under a minute.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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