RE: Filming Copyrighted Works for Promotional Video

["John B. McHugh" <j.b.mchugh@xxxxxxx>]

Sarah,

My opinion is that the uses you outline are not within fair use under any
stretch of the imagination. And if you are contemplating online use of this
material, this is even another reason to seek a license to use this
protected material.

I subscribe to the adage that the "Cheapest insurance against a copyright
infringement suit is seeking permission."

Jack

John B. McHugh
Publishing Consultant
414-351-3056
414-351-0666 (Fax)
Email:  j.b.mchugh@xxxxxxx

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-----Original Message-----
From: Sara Hindmarch [mailto:sara.hindmarch@xxxxxxxxxxxxxxxxxx]
Sent: Thursday, February 09, 2006 11:28 AM
To: digital-copyright@xxxxxxxxxxxxxx
Subject: Filming Copyrighted Works for Promotional Video

I'm looking for some guidance and am hoping someone who's been in a
similar situation can help me out.  The Arts Center that acts as an
umbrella organization for my museum (and includes other organizations
such a theater group, the symphony, etc.) has created a promotional
video for the Arts Center which includes copyrighted works from the
museum's collection.  Most of these works appear briefly (under 2
seconds) in panning shots of the galleries, although a few (including
two works on loan) appear for longer periods of up to 5 seconds, or in
multiple shots.  The purpose of the video is both promotional (to
proceed talks by the Art Center's President, to energize the staff at
meetings) and commercial (to generate revenue from corporate donations).




The Communications staff at the museum (working as the direct liaison
with the Communications staff at the Arts Center, who produced the
video) argue that its fair use and not "commercial" because no money is
being collected to see or purchase the video.  As such, they would not
need to contact the Rights Holders for permission.  I have convinced
them that they need to get permission for use of the loaned pieces and
should insert credits for at least those loaned works at the end of the
video.  My question is, is this enough?  The first factor of determine
Fair Use (the purpose and character of the use) is my stumbling block in
agreeing with their Fair Use assessment.  The issue on the
Communications side of the fence is a combination of money and time;
they don't feel that they should have to pay for rights and have
neglected to consider rights issues until days before the piece is due
to be released.



I'd love to hear opinions, or if anyone has had a similar experience and
has created a policy to deal with promotional videos featuring copyright
protected collections.  This is coming up more and more in our museum,
and I'd really like to get something in place now before things get out
of hand.  I've been trying to secure more permissions directly from the
artists for these sorts of uses, but its slow going.  We've also tried
pointing film crews at pubic domain works whenever possible.



One other issue to add in here too- the Arts Center hopes to make the
video available online at some point in the future.  My feeling, and
understanding, is that web use would certainly require the permission
from all Rights Holders, no matter how fleetingly their work is shown
(knowing that viewers could pause, take screen captures, etc.).  Credits
too should be included in the video.  Any other hidden issues that I'm
not thinking of with the web?



Thanks to all, you can respond to me off list at the e-mail below.



Sara Hindmarch

Assistant to the Registrar

Rights and Reproductions



sara.hindmarch@xxxxxxxxxxxxxxxxxx <mailto:h@xxxxxxxxxxxxxxxxxx>