How does fair use apply to television and radio clips?

[ready29003]

How does fair use apply to television and radio clips?

If I want to make a show that uses clips from television news or interview shows, what can I do with rock solid legal freedom, what is in the grey area, and when will I clearly cross the line?

Does it depend upon the program and their declared position?

Is there a difference between using a clip from a sports event, a news program, or a fictional television show?

What about using radio clips?

What about using only audio clips of a television show?

If anyone can direct me to some clear explanations I would really appreciate it.

Thanks.

Matt

[Ms2001]

Here’s the EFF’s Fair Use FAQ, which links to the Stanford Copyright & Fair Use Center.

@The EFF

There are no clear-cut rules for deciding what’s fair use and there are no “automatic” classes of fair uses. Fair use is decided by a judge, on a case by case basis, after balancing the four factors listed in section 107 of the Copyright statute. The factors to be considered include:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes – Courts are more likely to find fair use where the use is for noncommercial purposes.
2. The nature of the copyrighted work – A particular use is more likely to be fair where the copied work is factual rather than creative.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole – A court will balance this factor toward a finding of fair use where the amount taken is small or insignificant in proportion to the overall work.
4. The effect of the use upon the potential market for or value of the copyrighted work – If the court finds the newly created work is not a substitute product for the copyrighted work, it will be more likely to weigh this factor in favor of fair use.

[Exapno_Mapcase]

Fromthe Stanford site, because the EFF quote refers to print and is of next to no use:

[quote]
2. Artwork and Audiovisual Cases

[ul]Not a fair use. A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin’s death. Important factors: The court felt that the portions taken were substantial and part of the “heart” of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982).)

[li]Fair use. The makers of a movie biography of Muhammad Ali used 41 seconds from a boxing match film in their biography. Important factors: A small portion of film was taken and the purpose was informational. (Monster Communications, Inc. v. Turner Broadcasting Sys. Inc., 935 F. Supp. 490 (S.D. N.Y. 1996).) [/li]
[li]Not a fair use. A television station’s news broadcast used 30 seconds from a fourminute copyrighted videotape of the 1992 Los Angeles beating of Reginald Denny. Important factors: The use was commercial, took the heart of the work and affected the copyright owner’s ability to market the video. ( Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119 (9th Cir. 1997).) [/li]
[li]Fair use. In a lawsuit commonly known as the Betamax case, the Supreme Court determined that the home videotaping of a television broadcast was a fair use. This was one of the few occasions when copying a complete work (for example, a complete episode of the “Kojak” television show) was accepted as a fair use. Evidence indicated that most viewers were “time-shifting” (taping in order to watch later) and not “library-building” (collecting the videos in order to build a video library). Important factors: The Supreme Court reasoned that the “delayed” system of viewing did not deprive the copyright owners of revenue. (Universal City Studios v. Sony Corp., 464 U.S. 417 (1984).) [/li]
[li]Not a fair use. A poster of a “church quilt” was used in the background of a television series for 27 seconds. Important factors: The court was influenced by the prominence of the poster, its thematic importance for the set decoration of a church and the fact that it was a conventional practice to license such works for use in television programs. (Ringgold v. Black Entertainment Television, Inc., 126 F.3d 70 (2d Cir. 1997).) [/li]
[li]Fair Use. A search engine’s practice of creating small reproductions (“thumbnails”) of images and placing them on its own website (known as “inlining”) did not undermine the potential market for the sale or licensing of those images. Important Factors. The thumbnails were much smaller and of much poorer quality than the original photos and served to index the images and help the public access them. (Kelly v. Arriba-Soft, 03 C.D.O.S. 5888 (9th Cir. 2003).) [/ul][/li][/quote]

The permissible fair uses of television and radio clips are much more circumscribed than fair uses of print. The type of show and the type of use and the amount of use are extremely important. “Rock solid” is not a term than anybody should feel safe in using when it comes to discussing fair use. The case law is spotty and inconsistent.

I’m also not sure what you mean by the “declared position” of a show. Do you know of any shows whose “declared position” isn’t don’t do this ever under any circumstances?