Fair Use Analysis for Film Critique Videos

Film critics, here’s what you need to know about fair use:

• It allows limited use of copyrighted material without permission
• Crucial for using movie clips in reviews and analyses
• Determined case-by-case based on 4 main factors:

1. Purpose and character of use
2. Nature of copyrighted work
3. Amount used
4. Effect on market for original

Key points:

• Use short clips with added commentary
• Transform the original by adding new meaning
• Document your reasoning
• Be ready to defend against claims

Usage	Fair Use Likelihood
Short clips with commentary	High
Extended scenes without analysis	Low
Official trailers	Medium
Unreleased films	Low

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The Four Parts of Fair Use

1. Purpose and Type of Use

• Transformative use: Adding new meaning favors fair use
• Commercial vs. non-profit: Non-profit educational uses more likely fair use

"A videographic essay is a transformative use aimed at providing commentary, criticism, and/or parody." – Jason Mittell, Media Scholar

2. Type of Original Work

• Factual works more likely fair use than creative works
• Published works have broader fair use than unpublished

3. How Much is Used

• Less material generally favors fair use
• Using the "heart" of the work may weigh against fair use

Amount Used	Fair Use Likelihood
Small clips	Higher
Entire scenes	Lower
"Heart of the work"	Lower

4. Impact on Sales

• Negative impact on sales less likely to be fair use
• Not obtaining available licenses may weigh against fair use

"If the copyrighted work could have been purchased or licensed, that weighs against fair use." – U.S. Copyright Office

Changing Works for Film Critique

To change a work effectively:

• Add commentary to movie clips
• Use short segments
• Combine clips with analysis
• Alter the original purpose

Examples:

• Every Frame a Painting: Uses clips to explain filmmaking techniques
• Nerdwriter: Breaks down scenes to discuss themes and techniques

"The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." – Supreme Court of the United States

Using Fair Use in Film Critique Videos

To check for fair use:

1. Evaluate purpose
2. Assess nature of work
3. Measure amount used
4. Consider market impact

Tips for using movie clips:

1. Keep it short
2. Add value
3. Credit sources
4. Use official sources
5. Document your process

"Small snippets used in the context of a bona-fide movie review will most likely constitute FAIR USE." – Gordon Firemark, Entertainment Lawyer

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Court Cases and Examples

Key cases:

1. Elvis Presley Enters., Inc. v. Passport Video: Not fair use due to lack of commentary
2. SOFA Entm’t, Inc. v. Dodger Prods., Inc.: Fair use for short clip serving as "biographical anchor"
3. Andy Warhol Foundation v. Goldsmith: Not fair use; changing artwork isn’t always enough

Lessons:

• Use short clips
• Add clear commentary
• Consider market impact

Dealing with Copyright Claims

When facing a claim:

1. Check claim details
2. Evaluate fair use
3. File a dispute if warranted
4. Wait for response

To protect your content:

• Use EPKs
• Document your process
• Be transparent
• Consider insurance
• Use alternative platforms

"It’s risky to rely on Fair Use… since that determination is typically made on a case-by-case basis by a Judge or Jury." – Gordon Firemark

Ethics and Technical Tips

Ethical considerations:

1. Respect original context
2. Credit sources
3. Be transparent
4. Minimize impact
5. Consider consequences

Helpful tools:

• Fair Use Evaluator
• Creative Commons Search
• YouTube’s Copyright Match Tool
• SchoolTube

"Fair use has been compared to a muscle that will atrophy if not actively exercised." – Jason Mittell

Wrap-up

Remember:

• Four factors of fair use
• Transformative use is key
• Small snippets are safer
• Document decisions
• Be ready for challenges

More Learning Materials

Resources:

• "Reclaiming Fair Use" by Aufderheide and Jaszi
• Center for Media and Social Impact
• U.S. Copyright Office’s Fair Use Index
• Electronic Frontier Foundation

Helpful organizations:

• Association of Independent Video and Filmmakers
• Independent Feature Project
• International Documentary Association
• National Alliance for Media Arts and Culture

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• Fair Use for News Reporting: Copyright Guide
• What Is Copyright Fair Use Explained
• 5 Fair Use Myths on Social Media Debunked
• Understanding Copyright Fair Use for Online Content