using movie clips in a video presentation?

[Mike Meyerson]

I have a potential client who does seminars for schools and educators. He wants me to edit together a video using movie clips for him to use as part of his seminar. The video would just be for his use...not sold or anything like that. But he is being paid for giving the seminar.

He asked me about the legality of using movie clips in such a manner. I told him theoretically, it is illegal...just not sure "how illegal" because they are being used for educational purposes.

Anyone have any similar experience? Is there something like ASCAP for film...that we could just pay a fee for usage?


thanks

[Steve House]

IANAL but I don't think it's theoretically illegal - I think it's just plain and simply flat-out illegal. The exemptions for educational use apply to scholarly research, criticism, and some classroom situations (it's legal to show 'Citizen Kane' in a film history class, for example) but it doesn't sound like what your client is doing is even close to that. He's just another motivational speaker living in a trailer down by the river who happens to have chosen to offer his services to the education market and want's some visual aids to make his presentation better. Commercial product if I've ever heard of one. IMHO, you'll need to license those clips directly from the copyright owners (and if they're clips like Darth Vader "I'm your father, Luke" lots'a luck getting the second mortgage you'll need to pay for 'em.) There're no ASCAP-like central clearance organizations that I've ever heard of, gotta go directly to the source.

[Chris Hurd]

Originally Posted by Steve House

IANAL but I don't think it's theoretically illegal - I think it's just plain and simply flat-out illegal.

Incorrect -- it certainly is NOT illegal if he obtains rights and clearances to do so, and if you note in his post, he is asking how to do that. There are clearance houses that specialize in this sort of licensing. Expensive? Sure. Prohibitively so? Maybe. But definitely legal, for a price.

[Chris Hurd]

Originally Posted by Mike Meyerson

Is there something like ASCAP for film...that we could just pay a fee for usage?

Yes there is.

Start with this page: http://www.mplc.com/umbrella.php

Also this PDF brochure: http://www.mplc.com/pdf/MPLC_Brochure.pdf

That's the Motion Picture Licensing Corporation, and they should provide all the info you need.

[Steve House]

Originally Posted by Chris Hurd

Incorrect -- it certainly is NOT illegal if he obtains rights and clearances to do so, and if you note in his post, he is asking how to do that. There are clearance houses that specialize in this sort of licensing. Expensive? Sure. Prohibitively so? Maybe. But definitely legal, for a price.

Yep - I understood he was asking if it's illegal to use them WITHOUT licensing since the purpose was a seminar delivered to educators. Certainly it would be legal if he clears the use with the copyright holders but not without it.

[Doug Okamoto]

If the organization that Mike's client works for is a nonprofit (and the definition is a IRS distinction not if they are charging for the seminar or not) and the seminar is covered under that nonprofit classification, then under the Fair Use doctrine in the USA they can use a portion of the work without having to obtain permission or make compensation to the copyright owner.

It's courteous to credit the copyright owner though when using the work!

[Steve House]

Originally Posted by Doug Okamoto

If the organization that Mike's client works for is a nonprofit (and the definition is a IRS distinction not if they are charging for the seminar or not) and the seminar is covered under that nonprofit classification, then under the Fair Use doctrine in the USA they can use a portion of the work without having to obtain permission or make compensation to the copyright owner.

It's courteous to credit the copyright owner though when using the work!

That is not true - the Fair Use doctrine doesn't make any distinction between profit-making and non-profit (or even religious) organizations of any sort. Even clearly defined charities and tax-exempt religious organizations are still subject to the same rules requiring permission to use copyright materials that apply to broadcasters or Corporate America. The education exemptions apply very narrowly to the use of excerpts from the work for the purposes of scholarly research, criticism, and a few very limited situations of classroom instruction.

If you are hired and paid as a freelancer to come and give a seminar to a group of public-school educators, you yourself are still a profit-making entity even if your client organization is not. I conduct training sessions on a nearly daily basis for people from government agencies and ministries, public safety agencies, and public education system teachers and adminstrators. No way does the fact that they are non-profit, governmental organizations give me any special status, tax breaks, or exemptions.

[Doug Okamoto]

Sorry Steve, obviously the laws in Canada and the US differ on this.

Thie following is a direct quote from the US Copyright law as it stands now.

107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 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;

(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.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

http://www.copyright.gov/title17/92chap1.html

You can also look here http://www.copyright.gov/fls/fl102.html The only big thing that is ambiguous is what is considered a "portion" of a work.

You are correct that if you are a for profit organization working for a nonprofit then Fair Use does not apply. But if you are an employee of a nonprofit doing work for them (such as maybe Mikes's client) then you are covered under Fair Use. The Internal Revenue Service is very clear what is and what isn't a nonprofit entity.

[Steve House]

Originally Posted by Doug Okamoto

... work.

You are correct that if you are a for profit organization working for a nonprofit then Fair Use does not apply. But if you are an employee of a nonprofit doing work for them (such as maybe Mikes's client) then you are covered under Fair Use. The Internal Revenue Service is very clear what is and what isn't a nonprofit entity.

If you look at the original post it says his client "does seminars for schools and educators. " I may be misinterpretting him but it sure sounds like the client is a vendor selling seminars of some sort to the educational market. That would put him into a similar situation as a textbook publisher selling to the schools - surely you don't claim that someone like Scholastic Press would be able to use copyrighted material in a textbook without permission simply because they intended to market the book to the public school system? Wouldn't that be exactly the same situation as someone going around delivering seminars on, say, "How To Get Your Students To Love To Read" to various educators and educational organizations?

In your post you're focusing on the first of several factors which are taken into account in determining Fair Use, where it mentions "nonprofit educational purposes" and ignoring the main body of text above it which says WHEN these factors come into play. It's not that ALL uses of the work by a nonprofit are covered by Fair Use, it's that the specific activities of "criticism, comment, ... teaching, scholarship, or research" when done by the nonprofit specifically for nonprofit educational purposes would be covered. If the public high school shows "Citizen Kane" in a film history class, it's Fair Use. If they hold public showing as a publicity event to show off the new equipment in the A/V department, even if they don't charge admission, it doesn't fall under that umbrella of "criticism, ...teaching, scholarship, or research" uses and so would NOT be covered by Fair Use, even though the same nonprofit organization is conducting both showings. Even though the school is a nonprofit educational organization it does NOT have carte blanche to use copyright materials without license in any way it sees fit - even though they are nonprofit, they are only allowed unlicensed use for very specific and narrowly defined purposes, as the law you quote in your post clearly states. The nonprofit status comes into play after the first parameters are in place - unlicensed copies for classroom instruction in a nonprofit school would be allowed but copies of the same work used in an identical class but conducted by a for-profit career college would not be. "Teaching" is the primary consideration - once use specifically in the classroom has been established, THEN considerations of profit status enter the picture. That's the very reason schools still have to pay licensing fees for the music they perform during concerts and plays the drama club and classes put on. Those uses are not covered by Fair Use even though the performance is being done by a nonprofit educational institution - they're not the specific activities of "reseach, criticism, ...teaching."

[Mike Meyerson]

thanks for all the info...he wants to do legally if it's at all possible (and cost effective). He's not "not-for-profit"...here's what he does taken straight from his website...

"lectures and workshops on issues concerning childhood, adolescence and parenting. Their informative and effective programs have a unique, interactive approach that has earned high regard in the schools, hospitals, parent groups, and religious and community organizations that have welcomed them."

[Doug Okamoto]

Thanks Mike for the clarification on your client. Obviously he is not in a 501c classification (nonprofit organization) and will need to get copyright permission to use the work.

Steve, thank you also for your input. However to win your argument you went way out of context with Mike's original question. Thanks for your viewpoint anyway it was interesting!

[Mike Meyerson]

I'm gonna have him contact the MPLC and find out what it costs for an umbrella license...if I find out what it costs, I'll let you guys know.

[Steve House]

Originally Posted by Mike Meyerson

I'm gonna have him contact the MPLC and find out what it costs for an umbrella license...if I find out what it costs, I'll let you guys know.

Appreciate your passing it along when you get an answer. I read through the MPLC website info and it looks like their umbrella license is a venue based license for a single physical location like a bar or a church or day-care centre. If your preschool wants to show Disney movies to the kids, that's who they go to get legal. I doubt it will apply to what your client needs but I might be wrong and I look forward to your passing on what you hear from them.

[Steve House]

Originally Posted by Doug Okamoto

Thanks Mike for the clarification on your client. Obviously he is not in a 501c classification (nonprofit organization) and will need to get copyright permission to use the work.

Steve, thank you also for your input. However to win your argument you went way out of context with Mike's original question. Thanks for your viewpoint anyway it was interesting!

No it didn't. Mike asked if it was really illegal for his client to use clips from copyright movies in his presentation without licensing them and I answered that it was. It was suggested that if he was working for or delivering his seminars to nonprofits that might throw his usage under the Fair Use umbrella. It wouldn't and such advice is misleading to our readers. Our own dispute arose from your apparent belief that being a nonprofit educational organization is in-and-of-itself sufficient to exempt someone from the licensing requirements for copyright materials. It doesn't, except for when the material is being used for a few specific, very narrowly defined, purposes, none of which include what Mike clearly said his client wants to use them for in his very first post. In fact, even if the client was a regular staff member of a non-profit educational institution and was going to use these clips for in-service training of the faulty and staff, they wouldn't be Fair Use because it's not scholarship, research, teaching, etc. So whether the client was nonprofit or profit making doesn't enter the picture one way or the other and letting the issue pass without comment would have mislead Mike into giving his client bad advice. Erroneous beliefs have consequences.

[Chris Hurd]

Originally Posted by Mike Meyerson

Is there something like ASCAP for film...that we could just pay a fee for usage?

Originally Posted by Doug Okamoto

...to win your argument you went way out of context with Mike's original question.

Originally Posted by Steve House

No it didn't.

Actually yes it did go out of context.

The original poster clearly asked: Is there something like ASCAP for
film...that we could just pay a fee for usage? (see quote above).

The answer is most definitely YES there is.

The Motion Picture Licensing Corporation is a good starting point for obtaining clearances:

Start with this page: http://www.mplc.com/umbrella.php

Also this PDF brochure: http://www.mplc.com/pdf/MPLC_Brochure.pdf

Now that we are back on topic, I am closing this thread... for now, at least.