Legal Question in Intellectual Property in Indiana

We are a not-for-profit club. We will be conducting parenting classes with a local hospital. For promoting the concept to various health care organizations and prospective sponsors we want to use digital video of small parts of various popular movies which make a point. Examples: the final scene from Forrest Gump when Tom Hanks says \"I just wanted to tell you I love you.\" to his son and the Field of Dreams movie when Kevin Kostner says \"Hey... Dad? You wanna have a catch?\". I would video tape these from a TV screen and assemble them on a DVD with other promotional stuff. The classes will initially be free and eventually be conducted a a cost basis charge. Will we be liable for copyright infringement? Should we contact the publisher or film company or Kostner to get permission?


Asked on 7/30/09, 10:33 am

1 Answer from Attorneys

Kenan Farrell KLF Legal

Here are some of the concepts you'll need to consider: copyright, derivative use, fair use.

Under Copyright law, the owner of a copyright (in your situation, likely the movie company who owns rights to the movies you mention) has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) to perform the copyrighted work publicly; and

(5) to display the copyrighted work publicly.

You're looking to at least create a derivative work and display portions of the copyrighted work publicly, which falls under #2 and #5 above. Generally, you would need permission from the copyright owner or risk infringing their work.

However, the doctrine of "fair use" may allow you create these videos without obtaining permission. The Copyright Act (Sec. 107) allows certain uses of copyrighted work that are not considered infringement. These purposes include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.

In determining whether the use made of a work in any particular case is a fair use, the following factors are considered:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

You'll be using only a small portion of the works and seemingly for a nonprofit educational purpose. Moreover, you'll have little if any impact on the market for Forrest Gump or Field of Dreams. Once you begin use for a commercial purpose, you might have a copyright professional review your use to make sure you still fall within a fair use exception.

Hope this helps.

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Answered on 7/30/09, 11:02 am


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