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Movies intellectual property

Alex, OK |

I'm from Egypt. I'm planning to start my own Language teaching center. The point is that I have designed the course as follows: every class , the students will have to watch at least 30 minutes of a movie , or an animation in class. This is because exposure to the language is the only way to learn it. So, an instructor will be present in class with the students and will play a part of the movie every class until they finish the movie and then we start another movie. I will make sure that the movie is subtitles either in English or Arabic to help the students learn more vocabulary. The movie will be an original DVD.

My question is: does this fall under education exemption?
If yes, then I understand that I can play the movies., right?
If no, what should I do to be able to play them?

Attorney Answers 4

Posted

You are engaging in public performances of the movies in question (as any member of the public who pays tuition can come in and see the movie performed). Public performance is one of the five exclusive rights of the copyright holder, so unless a limitation and exception (L&E) applies, your acts are infringing.

There are two types of L&E to copyright law.

First, there are specific narrow L&E, such as some of the L&E that specifically apply to "nonprofit educational institution[s]" (i.e. 17 U.S.C. § 110(1) and (2)).

Second, there are broad and flexible L&E, such as Fair Use (17 U.S.C. § 107).

If your language teaching center is in fact non-profit, then I would recommend you hire a copyright lawyer to confirm that you meet the other requirements of 110(1) or (2).

If your language teaching center isn't non-profit (i.e. you intend to own the center and personally realize the profits from it), then you won't qualify under 110(1) or (2).

However, even if you aren't non-profit (or otherwise fail to qualify for 110(1) or (2)), there remains Fair Use. Fair Use is a flexible standard that adapts to new technology and circumstances. Unfortunately, it's adaptability makes it difficult to know with certainty whether or not it applies.

Fair Use looks at all relevant factors in order to determine whether the new Use is Fair (and hence not a copyright infringement). Assuming you are profit-seeking, that hurts Fair Use. However, an educational purpose helps Fair Use.

There are other factors we can discuss, but the bottom line is that you have significant factors cutting both ways. You'll need to sit down with a copyright lawyer to learn more about your facts (and possibly review the case law) in order to come to a Fair Use conclusion. Regardless of that conclusion, the copyright lawyer can also discuss the ramifications of being wrong, so you can make an informed risk analysis.

The bottom line on all of this is that if you want to move forward, you'll need to sit down with a copyright lawyer. This simply isn't a situation that can be resolved on a service like Avvo.

Regardless, good luck in your endeavor!

- Neil Wehneman

The standard disclaimers apply. These are general statements of law, and not legal advice, because I do not have all of the relevant facts. I am licensed to practice law in Indiana, and only practice outside Indiana through association with local co-counsel. If you have other questions or if you would like to discuss your situation in more detail, feel free to contact me. FEEDBACK on this post is appreciated, either thumbs-up or thumbs-down.

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11 comments

Asker

Posted

Thank you very much. I just want to clear up a point. Members of the public are not allowed to pay and watch the movies. This will be strictly to the students in class. So, does that make a difference.?

Neil Alan Wehneman

Neil Alan Wehneman

Posted

Can any member of the public sign up for your class, assuming they pay the tuition? If that's the case, this is still a public performance that requires the L&E analysis. It might be easier to think of public performance as "not a private performance." Indeed, that's how public performance is defined in 17 U.S.C. § 101: a public performance is "to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered." Your classes are not limited to people you know personally coming over to your house. So, to answer your comment, no it likely does not make a difference.

Asker

Posted

Yes, I understand. I checked this link http://www.movlic.com/k12/copyright.html It's about educational exemption. I met all the conditions, but the third one seemed a little puzzling to me. The movie is an integral part of the course, as I said because students have to be exposed to the language. But still I think I need more clarifications.

Neil Alan Wehneman

Neil Alan Wehneman

Posted

If you'd like to discuss this further, it might make sense to call me at 317-850-5188. Be advised that I am licensed in Indiana (and not Oklahoma), and so I will likely either need to refer you to an Oklahoma attorney or obtain Oklahoma co-counsel in order to provide you in-depth service. Regardless, feel free to give me a call.

Asker

Posted

Thanks a lot. God willing , I will call you. Does your number include the USA code?

Neil Alan Wehneman

Neil Alan Wehneman

Posted

No, that's just the domestic (U.S.) number. You'll need to dial the country code normally.

Asker

Posted

I called, but the answer machine answered. When should I call again?

Neil Alan Wehneman

Neil Alan Wehneman

Posted

You caught me during a meeting. Feel free to email me [neil at wehneman dot com] and we can coordinate a time where I'm free and awaiting your call.

Asker

Posted

I can call you now if you're free.

Neil Alan Wehneman

Neil Alan Wehneman

Posted

Yes, now is fine.

Bruce E. Burdick

Bruce E. Burdick

Posted

Asker, did you get you answer to this old question. In reviewing these, it dawns on me that your language center may be in Egypt not in the US. Is that true?

Posted

I agree with Attorney Wehneman's response and his comments. I would only add that if your Language Teaching Center is a for-profit institution (as seems likely), ruling out the Section 110 exemption and thus forcing you to rely on "fair use," it would be advisable to use less than 30 minutes of any particular film.

One of the factors in the fair use test is the "amount and substantiality of the portion used in relation to the copyrighted work as a whole." See http://bit.ly/kJnnU0. In situations where a person is engaging in some "transformative use" of the original material, the "portion used" factors often takes a backseat to the other factors in Section 107. However, your situation does not appear to be one of "transformative use." As such, the "portion used" factor may be important here, and thirty minutes of a 1h30m or even two-hour movie strikes me as a significant percentage. If you are set on this class format and are unable or unwilling to license the use of the films for your classes (which would be especially advisable if you have grand ambitions for your Language Center, like expanding beyond a single location), it might be prudent to use smaller pieces of more films -- say, five or ten minutes of each. From a non-legal perspective, this could also have educational benefits, as it would expose students to a greater variety of speakers and accents.

This answer does not constitute legal advice, and should not be relied on in place of a consultation with an attorney. No attorney-client, contractual, or fiduciary relationship has been formed as a result of this post or anyone's use of it. The only manner in which an attorney-client relationship can be formed with Charles Colman Law, PLLC, is via a countersigned letter of engagement on CCL letterhead. Charles Colman is only admitted to practice law in New York State, and before New York federal district courts. Although he endeavors to answer all Avvo questions knowledgeably, he cannot and does not provide any guarantees as to the thoroughness or accuracy of his responses.

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Asker

Posted

Thank you very much. Yes, of course ,I have great ambitions for my center. It's just that my partners and I are starting with a limited budget. And we want to do things right without infringing other people's rights. So, I understand that I don't fall under fair use, nor education exemption, right? What should I do now?

Charles E. Colman

Charles E. Colman

Posted

Unfortunately, most of the films now in the public domain in the U.S. (pre-1924) will be silent, which does you no good. However, there are undoubtedly many films available for certain uses under the so-called "Creative Commons" license (http://bit.ly/r4wa3); even if a particular CC film is classified as "not for commercial use," you could contact the copyright owner to see if he considers the proposed use to be "commercial." He might give you the go-ahead, which would essentially be an informal license. Also, at the risk of stating the obvious, you could make your own videos, in the style of "French in Action," which are specifically designed for language students and tell a story from week to week. Cameras and editing software are relatively inexpensive these days, and specially-tailored movies might actually be more effective, from a pedagogical point of view.

Posted

I don't think this is educational for purposes of a copyright law exemption or anything "fair" about this kind of use. It's clearly a comercial use that requires a license from the films' owners.

See an IP lawyer for help.

PLEASE READ THIS BEFORE YOU COMMENT, EMAIL ME OR PHONE ME. I'm only licensed in CA. This answer doesn't make me your lawyer, and neither do follow-up comments and/or emails and/or phone calls, and you shouldn't expect me to respond to your further questions if you haven't hired me. We need an actual agreement confirmed in writing before any attorney-client relationship is formed. This answer doesn't constitute legal advice, and shouldn't be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Charles E. Colman

Charles E. Colman

Posted

Thanks, Pamela. To be clear, I offer no conclusion about whether the proposed use is or is not fair -- I just thought it helpful to point out that if the asker decides to go the fair use route, he should use less of each film than described in the question.

Asker

Posted

I checked with a lwyer in my country , and he told me that it's not fair use. And I suggested that I create soemthing like a media library. I bring laptops and chairs, and each student would choose a DVD and watch it alone. My lawyer told me it's ok to do that. So, I just want to make sure if that's alright.

Pamela Koslyn

Pamela Koslyn

Posted

That's absurd. You need another (and better) opinion, from an lawyer that actually practices IP.

Asker

Posted

But this is the case in many language centers that rent their videos and audios to their students. They take money for renting, and this is somehow what I'm suggesting. Each student in class will have their own PC and own original DVD. It's like a place to rent videos for money. Just like what some public libraries do; they rent their books and videos to members in return for the membership they pay.

Vincent T Lyon

Vincent T Lyon

Posted

If each student is paying to rent the movie, each is giving money for a license. For your purposes I would suggest contacting the movie studio and finding out if they have a special license for instructional purposes that would cover your intended use. I saw plenty of movies dubbed in Spanish in my Spanish language courses over the years so I would think there is a system already in place rather than each individual class taking an is it/ is it not Fair Use judgment.

Asker

Posted

Thank you. Have you heard of public performance license websites? They're like a link between you and the studio.

Bruce E. Burdick

Bruce E. Burdick

Posted

User did you contact the MPAA or other movie licensing agency on this old question?

Posted

I agree with the general analysis of my colleagues---this sounds like a "for profit" teaching center which means that the only possible doctrine that would permit you to do this would be "fair use". I seriously doubt if this would be deemed fair use because you use a substantial portion of a film (30 minute). Bottom line---I think you will need to get a license in order to play these films. And that means you will have to negotiate with the copyright owners (probably the movie studios). By the way, you have no right to use these films, and the copyright owners have no obligation to grant you a license. They have the right to reject your request and they might do so.

Even more importantly, however, if you are starting a "language teaching center", you are going to run into many IP law questions. There is no general "educational institution" exemption to liability for patent, copyright or trademark infringement. To the contrary, educationl institutions, including universities and public schools, often pay substantial license fees for the right to use materials in their classrooms. This means that unless you proceed to obtain appropriate licenses and permissions, you run the risk of a very expensive law suit. Bottom line---you must retain IP counsel to represent you in this matter if you want to proceed. Otherwise, you could be on the losing end of a major law suit.

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Asker

Posted

Thanks, Maurice.

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