Response to Sara Hindmarch

["Harper, Georgia" <GHARPER@xxxxxxxxxxxx>]

Sara:



There are cases on the issue of what constitutes incidental use (which
is a fair use), and you can be pointed to them, but the real issue is
going to be risk tolerance. See the discussion of this very type of
circumstance in Lessig's Free Culture, Chapter 7, pp. 95 - 99 (available
online under a Creative Commons license, for free --
http://www.free-culture.cc/freeculture.pdf).



Before you commit to getting permission for 2, or at most 5 seconds of a
work of art on display in a public museum as a camera pans the gallery
space, please read the recently completed Documentary Filmmakers' Best
Practices in Fair Use at
http://www.centerforsocialmedia.org/rock/backgrounddocs/bestpractices.pd

f.



The subject matter (documentary films) isn't precisely your subject
matter, but the concepts are broadly applicable to creative uses of
other's materials. The culture of narrowly defining fair use (including
narrowly defining each of its 4 factors), of getting permission for
every single use no matter how incidental, no matter how small, no
matter how insignificant, in both nonprofit and commercial filmmaking,
is not without its societal cost (above and beyond the cost to the
person seeking permission). Please have a look and then think about it.

Risk tolerance has a role to play in creative endeavors - even if they
directly or indirectly raise revenues.



Georgia Harper





Georgia Harper
Univ. of Tx. System
Office of General Counsel
gharper@xxxxxxxxxxxx
512/499-4462