# Clarity on fair use



## SamGarnerStudios (May 2, 2013)

I recently uploaded a Lion King video with my underscore to it to youtube. I have done many videos like this, Lost, Star Wars, Transformers, etc, and always filed it as Fair Use. I always listed reasons for all the Fair Use bullets, like I'm not defacing the companies image, not making profit, the image is a small fraction of the entire content, and most importantly all these videos are for school purposes like applying to Master's programs and class assignments. I got a whole new warning though with the Lion King video and I want to make sure I understand fair use thoroughly before i counter it. I know fair use is a pretty grey area, but I up to this point had honestly thought I was in the clear. 

Can anyone shed light on this?


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## wst3 (May 2, 2013)

like you say, fair use is tricky - a very pretty shade of grey.

My approach - if I think I meet the requirements for fair use then I proceed, but if someone with "esq" after their name questions it I don't push back too hard. I am not an attorney, and don't feel like paying for one just to defend fair use.

It's a pity that it can't be better defined, but it is what it is.


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## RiffWraith (May 2, 2013)

You don't say where you are located in your profile, so it's hard to say if fair use applies to you. Fair use originated in the US (I am almost sure), but other countries may not have such doctrines, or sections in their copyright law. I am a little educated on this subject, but not entirely, and I am not a lawyer. MichaelL is (or was?), but I am not sure what type of law he has practiced, and I don't know if he is qualified to speak on this any more than I am. If so, here is hoping he posts here. in the meantime:

_1) I'm not defacing the companies image, _

Has nothing to do with fair use

_2) not making profit_

Has nothing to do with fair use

_3) the image is a small fraction of the entire content_

Duration and/or quantity does not determine fair use; there are no rules there

_4) all these videos are for school purposes like applying to Master's programs and class assignments._

There is a chance you are ok there. But maybe not.



> Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances.



Does applying to Master's programs and class assignments fall under 'scholarly reports'? I am not sure. Best bet is to consult an attorney first. If an infringment action is brough against you, that can be BIG - it's not like getting a speeding ticket. If you are in the US, you can ask an attorney for around $25 - well worth the money, IMHO. Check with your local bar association's lawyer referral service.

Cheers.


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## Mike Greene (May 2, 2013)

I'm not a lawyer and the following is not "advice," it's just my personal take on the situation.

I wouldn't worry too much about it. If Disney or whoever sees a video you made and *if* they don't like it (an extremely unlikely "if" IMO,) their most likely response is to ask you to take it down. End of problem. Unless you're much wealthier than the average 22 year old, you're not worth suing, so that's as far as it would go. Disney likes to sue rich people, not 22 year olds. And again, I'd be ultra-surprised if they objected in the first place.

Don't get me wrong, I'm not saying I don't respect copyright law. Far from it. But from what it sounds like you're doing, at minimum you're in the _spirit_ of fair use. Your intentions are honest. You're not uploading entire entire copies of Lion King for people to download. You're not releasing CD's of other people's songs. You're not taking anything away from Disney's profits.

You're basically doing what I imagine any Disney executive would encourage their own son to do if he wanted practice at being a film composer. No one's getting hurt and it's a great exercise. My guess is that if you were in a room with a Disney exec right now, he'd give you an approving wink. (Although he couldn't come out and _say_ you have permission, because it would potentially open a whole can of worms they don't want opened. It's kind of a "Don't ask, don't tell" situation for composers.)

For that matter, no lawyer is going to tell you you're within bounds, by the way. Save your money. Too many things could potentially bite them in the butt if they give you that sort of blanket legal advice and/or permission. It's against lawyers' nature to go out on a limb and tell you "you'll be fine." Like the Disney exec, they may wink at you to imply off the record that you'll be fine, but they won't come out and say, _"Do whatever you want, kid."_ Lawyers are gutless that way. (Kinda like my disclaimer at the top where I say none of this is "advice." :mrgreen: )

So you're going to have to just proceed on faith. Faith that of the zillion YouTube videos out there that clearly violate copyrights, yet get no legal action is brought against them, why would _your_ videos, which are of clearly honorable intentions, be targeted for punishment? Answer: They won't.


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## Dean (May 3, 2013)

SamGarnerStudios @ Thu May 02 said:


> I recently uploaded a Lion King video with my underscore to it to youtube. I have done many videos like this, Lost, Star Wars, Transformers, etc, and always filed it as Fair Use. I always listed reasons for all the Fair Use bullets, like I'm not defacing the companies image, not making profit, the image is a small fraction of the entire content, and most importantly all these videos are for school purposes like applying to Master's programs and class assignments. I got a whole new warning though with the Lion King video and I want to make sure I understand fair use thoroughly before i counter it. I know fair use is a pretty grey area, but I up to this point had honestly thought I was in the clear.
> 
> Can anyone shed light on this?



This is not really a huge deal in the scheme of things,but just because you can do something does'nt mean you should?Maybe theres a legal loophole re fair use but your still taking someone elses work without asking,I would'nt be happy if someone took my music without asking,edited it to a film and posted it on Youtube which is why I dont take other peoples stuff.Whether its Disney or some guy down the road doe'snt matter,its still theirs,no?...I'd always have respect and ask first. 

Would it not bother you guys if someone used your music without asking? D


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## JohnG (May 3, 2013)

Who was the warning from? If it was from Disney, I suppose you have to take it off a public space until you get permission. It's theirs.


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## Daryl (May 3, 2013)

Just one question from me. Why are you posting them on YouTube?

D


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## SamGarnerStudios (May 3, 2013)

Daryl @ Fri May 03 said:


> Just one question from me. Why are you posting them on YouTube?
> 
> D



To share and promote my work. Like I said, I hadn't had any problems up until now. I know innocent intentions don't excuse copyright infringement, but I was fine up until this. 

John, I'm not sure if it was from Disney or not. The warning just said someone flagged it, so I'm not sure. 

Thanks guys for the feedback.


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## gsilbers (May 3, 2013)

im guessing the opposite would be the same ? 

disney uses your music you posted on youtube to promote their gazillion dollar selling product on different media. they use only a section etc. and ranking profits. 


you wouldnt be too happy . 

but not sure, just a thought.


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## MikeH (May 3, 2013)

Yeah, posting them on youtube in public seems an entirely different thing compared to simply using them in private for classes/admission applications. 

Plus when you re-score insanely memorable movies like Star Wars and The Lion King, I always feel like you're at a disadvantage from the get-go. Even if it's great music, you will always always always be judged by the original. Why not figure out a way to score new footage, or just have your music up there by itself?


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## Daryl (May 3, 2013)

SamGarnerStudios @ Fri May 03 said:


> Daryl @ Fri May 03 said:
> 
> 
> > Just one question from me. Why are you posting them on YouTube?
> ...


That doesn't come under fair use, AFAIK. The exceptions that make up fair use are pretty specific, and self promotion doesn't fit into any of the categories. However, when in doubt, consult a lawyer.

FWIW composers aren't even supposed to upload clips to their own Websites of things that they actually scored. However, it is unlikely that anyone would be prosecuted for doing that, particularly if there were no complete cues.

D


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## RiffWraith (May 3, 2013)

Daryl @ Fri May 03 said:


> SamGarnerStudios @ Fri May 03 said:
> 
> 
> > Daryl @ Fri May 03 said:
> ...



That's right - it doesn't. You have changed what you said. In your original post you said, "applying to Master's programs and class assignments." Now you say it's to promote your own work. You didn't say that in your initital post. Well, it's not the same thing. The former might be fair use, the latter is definitely not. The chances are extremely small that Disney (or anyone else) will come after you, but it's still copyright infringement.


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## SamGarnerStudios (May 3, 2013)

MikeH @ Fri May 03 said:


> Plus when you re-score insanely memorable movies like Star Wars and The Lion King, I always feel like you're at a disadvantage from the get-go. Even if it's great music, you will always always always be judged by the original. Why not figure out a way to score new footage, or just have your music up there by itself?



It's practice, and its a chance to score with well done footage. And a lot of the stuff I have done for people they don't want me uploading it to their page, they want all the traffic coming through their page, and those are bridges I don't want to burn.

I understand that technically I'm using someone else's work. And in the reverse scenario if I was super rich and wealthy and successful and some aspring film maker cut some video to my music, I honestly could say I wouldn't care. It just seems such an innocent act to make a big deal out of it. Copyright infringement is one thing, this just seems so much less then that. But I digress.


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## SamGarnerStudios (May 3, 2013)

To add on, I have always subconsciously associated copyright infringement with a purposeful intention of gaining from someone else's work.


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## RiffWraith (May 3, 2013)

SamGarnerStudios @ Fri May 03 said:


> To add on, I have always subconsciously associated copyright infringement with a purposeful intention of gaining from someone else's work.



Read line #4

http://www.google.com/imgres?imgurl=htt ... Q&dur=6865


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## SamGarnerStudios (May 3, 2013)

Yeah I understand it when I read it lol, thats why I said subconsciously.


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## nikolas (May 3, 2013)

If it was fair use it shouldn't be in youtube. End of story. Since you put it in youtube, it means that you're trying to gain. Unless you can get a letter from your uni stating that they instructed you to get it up on youtube (which is not the case). Plus if it was for your uni and masters program, you would tag it as 'private' and have no problems and no views!

It's pretty clear to me.

Sorry...


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## Jimbo 88 (May 3, 2013)

Yea, I'm just re-saying what others have said...

Making a demo using "borrowed" material to show a director what your work is like is one thing. Kinda like the reverse of a temp score. 

When you put it out into the public, it now becomes a big advertisement and might cause unintentional problems for a company that you are not even aware of. So while you mean no harm and are in the spirit of fair use, you now have crossed a line.

I really like the point MikeH made. You also put yourself at a big disadvantage. I mean, just watch the HZ version posted and as great as your version is, you are not going to steal any clients. If you post a truly great original score to an original scene, add some hard work to your resume...you might, just maybe, be able to get into the conversation.


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## Dean (May 3, 2013)

SamGarnerStudios @ Fri May 03 said:


> I understand that technically I'm using someone else's work. And in the reverse scenario if I was super rich and wealthy and successful and some aspring film maker cut some video to my music, I honestly could say I wouldn't care.



Nothing technical about it,you're taking their stuff.

Its not just about the money,have you read the 'Zimmer rip-off' threads here?,that guy doesnt have trouble paying the bills but he still tries to protect his music. 

Its a good idea to get into the habit of asking first as your carreer hopefully grows,at least dont post it publically.D


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## Darthmorphling (May 3, 2013)

There are plenty of creative commons films put out by people that require only listing the license somewhere. Yes I realize some are crap, but some of the Blender ones are very professional looking.

As a matter of fact we are doing a trailer for the "Tears of Steel" open source movie on this very forum as part of a collaborative learning project.

Shameless plug for the project:

http://www.vi-control.net/forum/viewtopic.php?t=31328

Don


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## SamGarnerStudios (May 3, 2013)

Well emailing Disney seemed pointless, I'd probably never get a response. 

Thanks everyone for the help, and the creative commons video idea. I'll look more into that.


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## Brian Ralston (May 3, 2013)

SamGarnerStudios @ Fri May 03 said:


> To add on, I have always subconsciously associated copyright infringement with a purposeful intention of gaining from someone else's work.



You are attempting to gain though. Your associating your music with their "well made" video is an attempt at gaining a better reputation for your work...showing it in a better light in hopes to lead to more work...which will hopefully make you more money, etc..

This is why the infringement is not limited to only that of a monetary nature. Reputation, branding, image, etc...are all worth something too. To them...and to you.


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## Rctec (May 3, 2013)

Interesting. And just so we're clear, I didn't "flag" your post...but someone at Disney might have.
By the way, I get a constant stream of requests forwarded to me from Disney on new uses for "Pirates", since it's still an active francise for them. They actually do take requests very seriously and have the decency to ask me what I think. So you writing in your post that asking Disney seems pointless is just either lazyness or not bothering to think it through. 
But self-promotion on YouTube is very different than a school exercise.
Here is an interesting article by Ron Rosenbaum, which casts a far wider net than the scope of the question you asked:

http://www.smithsonianmag.com/arts-culture/What-Turned-Jaron-Lanier-Against-the-Web-183832741.html?c=y&page=100&device=iphone (http://www.smithsonianmag.com/arts-cult ... ice=iphone)

Best,
-Hz-


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## Andrew Aversa (May 4, 2013)

Regarding the question of fair use specifically, this is something I've had a good bit of experience with through a non-profit organization I participate in. I'm not a lawyer but I've studied this particular topic extensively.

First, you must understand that 'fair use' is an affirmative defense to copyright infringement. It is ALWAYS determined on a case-by-case basis, and while we can make educated guesses as to whether any particular use COULD be defended as 'fair use', the only way to prove it with certainty is in a court of law.

There are four factors involved in determining whether a use is 'fair' or infringing. Keep in mind there is no formula here. There are no hard-and-fast rulings or guides to go by. It is all extremely qualitative, and again, can only be determined in a court of law.

*1. Purpose and character of the use.*

This factor examines what you did with the work, and why. Was it transformed in some way, with new value added? The more you can ADD TO or transform a work, the better the chance fair use will apply. This is particularly relevant when it comes to criticism, review, and educational purposes. Here also the commercial nature of the work is relevant. Re-purposing a copyrighted work in an attempt to monetize it is less likely to be seen as 'fair', relative to a non-profit use that is done with the intent of benefiting society in some way.

Your particular use would, in my opinion, fall somewhere in the middle of the spectrum here. You are transforming it by adding original music, but the video is unchanged. You are not earning money, but if you are putting it online, then you are using the videos for self-promotional, professional purposes. If you were restricting the use to an ACADEMIC setting, then a fair use defense would be much stronger. Academic uses of copyrighted works are often defended as being 'fair', and with good reason.

*2. Nature of the copyrighted work.*

This essentially gives leeway to uses of copyrighted work based in reality (non-fiction) as opposed to fictional works. For example, re-scoring some kind of documentary might weigh more in your favor as opposed to re-scoring a fictional work.

*3. Amount and substantiality relative to the work as a whole.*

Generally, the more of a work you use, the less successful a fair use defense would be. Furthermore, not all parts of a copyrighted work are created equal; some are more significant, memorable, famous (etc) than others. In other words, using shorter clips of a movie pushes your use more in the direction of 'fair use'. However, using well-known or iconic scenes pushes it back. It's definitely a bit of a grey area, but the rule of thumb would be to use as little as possible, and minimize your use of 'significant' scenes or parts where possible.

*4. Effect on the potential market for the work, or its value.*

This is where the commercial vs. non-commercial thing comes into play again. If you are commercializing your use in some way, it could potentially interfere with the market for the original work, in which case the use would likely NOT be considered fair. It's not so much an issue of "degrading" the original work - after all, parody / satire is frequently protected - but whether the copyright owners' ability to exploit the work would be affected by your use. 

Would people watch an unaltered version of The Lion King online instead of buying or streaming the DVD? Definitely. What about just parts of it? Most likely, yes. A very small part of it rescored? Well, here again is a grey area... most likely, your use of a short clip rescored would have an insignificant or zero effect on the market for The Lion King or its soundtrack. But even if this IS true (and Disney could argue against that), there are still the other three factors to consider.


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## SamGarnerStudios (May 6, 2013)

Hans, I didn't think for a second that you flagged me. When I say that it's pointless to contact them, I just had a feeling my request would get lost among more important things. 

Thanks Zircon for the thorough response. Basically what you posted was more or less what I posted when i claimed it as fair use. Wasn't good enough though.


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## Kejero (May 6, 2013)

My unsolicited advice: For exercise purposes it's always a good idea to use existing material to score against. Just don't make it public. If you really really want to share it with a select group of people for feedback or to promote your skills (which I... personally wouldn't do with existing material though), you can make your video 'private' on YouTube and send the URL of the video to those people. Everybody happy.


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## Ed (Jun 7, 2013)

The law is pretty clear:



> 17 U.S.C. § 107
> Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
> 
> 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
> ...



The example being refereed to, replacing sound/music in a clip clearly comes under "education", "scholarship", "research". If the video was flagged, it should not have been.


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