Re: Filming Copyrighted Works for Promotional Video

[Bill Westwood <westwood@xxxxxxxxxxx>]

Sarah,

As a practicing (over 25 years) commercial illustrator and fine artist,
instructor and lecturer on copyright for artists, I believe that a solution
to your dilemma is have a staff member(s) get on the phone and contact every
artist whose work appears in the video. Honestly explain the situation and
and usage and ask for their permission - with assurances that they will be
given prominent name credit in the film credits.

Based on my experience with this sort of situation, I will wager that every
artist contacted will grant you permission. Why, because the promotional/ego
value of having one's work appear (with name credit) in a vehicle of this
type, trumps the potentially small usage remuneration possible for a two to
five second appearance.  Most people - even artists - will respond favorably
to something the perceive as beneficial to themselves, if simply asked.
You can be guaranteed a negative response and copyright infringement
saber-rattling, if they are not asked and find out later.

After the calls, follow up immediately with a permission form (and not an
abusive sounding one) faxed or sent overnight to each artist for a signature
with a prepaid overnight return.

All that said, I agree with the other respondents that this falls outside of
fair use and puts the film makers at risk for infringement if the rights of
the artists are simply ignored.

Good luck,

Bill Westwood


-- 
William B. Westwood, M.S.
Board Certified Medical Illustrator
Westwood Medical Communications
915 Broadway
Albany, NY  12207

p(518) 432-5237
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on 2/9/06 2:50 PM, Bisola Osho at bisolaosho@xxxxxxx wrote:

> 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:
> Association Publishing, Book Publishing, Copyright, Executive Recruiting,
> Journal Publishing, Product Development, and Publishing Management.
> 
> 
> -----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>
> <mailto:h@xxxxxxxxxxxxxxxxxx<mailto:h@xxxxxxxxxxxxxxxxxx>>