Legal Question in Intellectual Property in Florida

Re: copyright infringement?

The "Fair Use" doctrine allows the use of certain copyrighted material under certain circumstances. The doctrine permits the use of small portions of a coyrighted work for purposes such as news reporting, comment, criticism, and scholarly reports. In your case, you used a movie clip prepared for a class project at a University which may classify as "fair use" as a scholarly report.

When one takes a copyrighted work and alters it, adds to it, transforms it, it is called a "derivative work." Only the owner of the copyrighted work can authorize the production of a derivative work. There are no firm rules stating how much one must alter a work for it to be an entirely new work or the percentage of an underlying work which may be used without permission. In your case, you did not have the copyright owner's permission to transform the work and create a derivative work.

Disclaimers or commentary as to how a copyrighted work was altered, or which part of the new work is claimed by the new author, or proper attribution to the original author have no effect in terms of whether the use of the original copyrighted work is permissible. Your statements which explain how you have altered the work have no legal effect for this analysis.

What I have stated here is only the beginning of an analysis. I have stated the rule or doctrine of law, and I have stated which of your facts fits into that law. However, I have intentionally not analyzed your facts under the law and rendered an opinion as to what may/not be copyright infringement or fair use, assessed your overall risks, or recommended any course of action. That is a complex analysis and opinion, and one which you could rely upon in good faith if your intent to infringe was ever called into question.

I will tell you definitely that if you wish to continue to advertise your talent using the movie clip derivative, and be sure you won't get into trouble, you should request and obtain permission from the copyright owner. Permission is the only thing that will DEFINITELY keep you out of trouble.

If you would like a full opinion, please hire an attorney who is experienced in copyright litigation and infringement opinions.

I wish you the best of luck.

Sarah

Re: copyright infringement?

Your video may be "fair use" of copyrighted material. In an infringement suit fair use is a defense you argue in court AFTER you have been sued. Once you are in court you have huge personal liability and will be paying a lawyer. You are now in a DMCA takedown, not an infringement suit, but infringment is the background YouTube is working in. If the clip is left up and later a court finds it to be infringing, there will be big money owed to NBC.

Options for this video:

1: YouTube has an appeals process. This is listed as Counter-Notification in YouTube's statement on DMCA take downs: http://www.youtube.com/t/dmca_policy You should research fair use. If you honestly believe your video is fair use of NBC's movie, you should appeal to YouTube and explain why it is fair use. YouTube will consider your appeal and may or may not repost your video.

2: An advocacy group might represent you. Most notably, the Electronic Frontier Foundation (EFF) sometimes provides representation. Last year, when the video of a baby dancing to Prince was removed from YouTube, EFF went to court to protect the mother's right to post the video. EFF is unlikely to take your case, but you never know. Contact them and try to find a local EFF contact as well. Look for other advocacy groups using search terms like "copyleft". You are very unlikely to get an advocacy group to provide you with a lawyer, however you are likely to get some training materials on clearance that will help you to plan future projects and avoid similar troubles later.

3: You can seek NBC's permission to use the clip. I suspect this will be ridiculously expensive. You are trying to license after the fact, so you must now take what you find. If you license clips before production, then you can walk away from an expensive clip without loosing time and effort building a work on expensive underlying material.

For future projects: Research licensing and liabilities. Creative Commons licenses are becoming popular. These are licenses that allow certain types of use. Future clients may expect you to understand film production, including how to get source material. A client who gets a take down notice will not be happy. An excellent book is Copyright and Clearance by Michael Donaldson.

Connect with an entertainment lawyer who handles licensing and contracts. It can be difficult to find a specialist outside of NY or CA. Full Sail may keep a listing. If you get a sweet gig, it is good to have a lawyer ready to look over the contract. A lawyer can also look over agreements to use material produced by others and explain exactly what rights you are getting so you don't get a surprise later.

YouTube's reinstatement process is your best chance of keeping the video posted. In the future remember: prevention is the best cure.