The concept of fair use is a doctrine that is deployed to encourage commentary and criticism of copyrighted works. It is predicated upon the idea that one ought to be at liberty to use certain portions of copyright material without having to ask for the permission of the copyright owner. This is the principle often deployed by those who have been sued for issues relating to copyright infringement. But are new clips public domain, we will answer this and some other related issues in this article.
Are TV news clips public domain
It is worthy of note that news broadcasts are generally copyright protected. However, under American copyright law, there is a place for fair use. This acts as a limit to the rights of copyright holders while also serving as a shield against issues of infringement. Therefore, if you are making a documentary that has to do with news reporting and you are simply using a clip for the critique of news, you may be armed with a solid argument in your defense. Therefore, if a user is fair use, it remains fair use even in a situation where the owner of the copyright declines to give his or her permission for the use.
It is however important you know that the fact that you feel you are operating within the confines of fair use does not mean the owner of the copyrighted material won’t sue you and cost you money. Also, news footage may contain performances and footage which are simply not a part of the copyright of the broadcaster. So even if they give you rights for their work, they can’t give you the same for what they have not right over.
What Is Fair Use?
Fair use is a doctrine contained in the laws of America which allows the limited usage of copyrighted material without a need to first get permission from the copyright owner. The main aim of fair use is to create balance the interests of the holders of the copyright as far as the use and distribution of creative works are concerned. The fair use right in American law usually applies to a collection of purposes which is preceded by the “such as’ opening clause. This has seen its application in technologies that were never imagined in the initial statute such as VCR, internet search as well as reverse engineering of software.
How Is The Concept Of Fair Use Applied?
To better comprehend the concept of fair use as regards its application, it is imperative to know some factors listed in the laws handling copyright infringement. These factors are closely considered in each case to ascertain if a use qualifies as fair use. In a case where use is not considered as fair use, it would be taken that one has infringed upon the rights of a copyright owner and as such may have to pay damages. The negative side to this is that even if you follow the factors to the letter and the owner of the copyright does not agree with your interpretation, you may pay licensing fees or the issue may be resolved via litigation.
Fair use simply refers to the use of copyrighted works without the express permission of the copyright owner for a transformative and limited purpose. The Supreme Court for instance places emphasis on the fact that the transformative nature of such use greatly determines if the material was used to create something new or used verbatim.
What this simply means is that we have to know if: 1. the work has been transformed by the addition of new meaning or expression and 2. Was there addition of value to the original work thus creating something new, perhaps new aesthetics, new information or new insights?
There are generally two categories that are deployed when considering fair use. These are the news and commentary. In the case of editorial reviews and news, you would have to look at the commentary and category first. When critiquing or commenting on copyrighted material, the principles of fair use would permit you to reproduce some part of the work to accomplish your intent. Four factors have generally been used by courts for the resolution of fair use related disputed. These are spelled out in the Copyright Act. They include; the nature of the copyrighted work, the character and purpose of use as well as the sustainability and amount of the taken portion and finally the possible effect of the use on the market.
A Look At The Four Factors
Character and purpose of use
This factor forms the core of quite a several fair use related issues. This is because it permits the courts to have a more subjective look into the intentions of the infringing party in the use of the material. This is particularly so in cases that involve footage, news reports, sports highlights, and reviews. It is one factor that seems to favor the party that is clamoring for fair use based on several reasons.
The first thing you should know is that copyrighted protection usually does not cover the factual content of a copyrighted work. What this simply means is that publicizing the scoreline of a soccer game by news organizations falls under fair use and does not contravene copyright law. One factor that helps in strengthening an argument regarding fair use in a matter that does not involve the use of factual information is the use of such materials for news commentary. For instance, when you are using a photograph or clip to announce the results of a basketball game, courts would regard the use of such materials as fair use in the following instances: when it is presented in a news report, it must be done using quotations and presented in a broadcast of a job that is in a place of the event that is being reported.
Sustainability and amount of the taken portion
The general misconception of the fair use application has seen the seven-second rule being made. Brief use of footage may not be seen as fair use except all the factors of fair use can be implemented. However, the amount of the footage used is a big yardstick in determining if the use is fair or not.
The nature of the copyrighted work
It is worthy of note that the scope of fair use is often quite narrower for works that have not yet gotten to the public domain. The reason for this is that the author of such works has the right to control the first appearance of such a work. What this means is that one would have a better argument based on fair use in the case of a published work as against an unpublished work.
What is its effect on the target market
As far as copyright infringement issues are concerned, one of the most vital factors to consider is based on if the use deprives the owner of the income of the copyrighted work. If the owner of a copyrighted feels he or she has lost or being deprived of income, they are likely to proceed with a lawsuit. This is applicable even in a case where you are not competing with the original work directly.
When Exactly Does Fair Use Apply?
Even though the four test factors of the copyright law outlined above gives a solid foundation for fully comprehending which uses can be considered as fair uses, courts have been known to consider different factors in several cases. There are quite a several instances where the concept of fair use may not easily apply.
This is why it is important to know how a news organization makes use of fair use without incurring potential copyright infringement related issues. Well, the easiest way to do this would be to simply ask for the permission of the copyright owner. This is however not always possible as a result of the urgency associated with news reporting.
Hence, if a news organization wants to use non-cleared third-party clips, it is ideal that they ensure that the use of strictly for original news reporting, it must only be used when reporting on recent news, they must also ensure that the use is a brief usage of the clip and finally, they must make sure that there is an actual criticism or commentary by the person who is appearing on the clip
Final Word
Understanding the fair use concept and its applications will certainly save you a lot of trouble and money at the same time. It, however, isn’t too complicated as long as you have a good understanding of the copyright laws. It is always safer to consult an attorney to help you sort out any issue that may arise in this regard.
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