Re: Filming Copyrighted Works for Promotional Video

["Bisola Osho" <bisolaosho@xxxxxxx>]

Sarah,

I would second what John said that it is better to get permission. Looking at
this vaguely, the use is not transformative but beneficial to your
organization (see American Geophysical Union v. Texaco) and one of the
purposes is to raise money which is a commercial use as opposed to a non
commercial use. This evidently is not in the museum's favor.

Another fair use factor to consider is the amount and substantiality of the
portion used in relation to the copyrighted work. This is considered both
qualitatively and quantitatively. If what is taken is the heart of the work
even though it is small, the use will not be taken as fair.

As to the online project, it will amount to unlawful copying and distributing
of copyrighted work.

Bisola Osho
Cardozo School of Law (LLM 2006)

----- Original Message -----
  From: John B. McHugh<mailto:j.b.mchugh@xxxxxxx>
  To: Sara Hindmarch<mailto:sara.hindmarch@xxxxxxxxxxxxxxxxxx> ;
digital-copyright@xxxxxxxxxxxxxx<mailto:digital-copyright@xxxxxxxxxxxxxx>
  Sent: Thursday, February 09, 2006 1:16 PM
  Subject: RE: Filming Copyrighted Works for Promotional Video


  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<mailto:j.b.mchugh@xxxxxxx>

  Visit www.johnbmchugh.com<http://www.johnbmchugh.com/> to read free McHugh
Publications on these topics:
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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<mailto: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:sara.hindmarch@xxxxxxxxxxxxxxxxxx>
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