by Yoram Schaffer
A guide for the perplexed
The sub-title, A Guide for the Perplexed, refers to the famous book by Maimonides, written in the 12th century. Maimonides was seeking a way to logically bridge between the Hebrew Bible and Aristotelian philosophy, or in other words, to find rationale and explain contradictories. The ”perplexed” refers to the layman reader, who might find herself confused.
Without comparing in any way that post to the genius of Maimonides, I will, however, try to follow the intention of The Guide, by demystifying Fair Use in the film world.
The post is practical, not theoretical. It wishes to provide guidelines that demonstrate clearly when it is considered Fair Use and when not. It is meant both for educators and researchers from one side, who fear lawsuits (or simply might not want to infringe rights, even without that fear) and filmmakers, distributors, and producers from the other side, who want to know they have a case before taking legal measures.
What is Fair Use
Simply put, the right to use a creation (in that post — films, and videos), without having to ask for permission to reuse it or pay royalties to the right-holder.
[I know, I know, it’s an oversimplified definition and does not refer to the transformative use, etc. — I remind again that the intention of this post is practical, not academic]
The motivation behind Fair Use comes from the belief that knowledge should be accessible to all. By ‘knowledge’ we mean works of art, scientific invention, etc.
But if that knowledge would be accessible to everyone immediately, without securing any rights for revenue to the creators, there’s a risk that creativity would be discouraged: no new medications will be developed and people will think twice before publishing a book.
Therefore, the legislators try to reconcile the rights of the individual for ownership of their creation (intellectual property) and the public right to access that knowledge, benefit from it, and enjoy it.
Without going too deep into the philosophical arguments behind Fair Use, I will demonstrate the dilemma with an easy to understand scenario: a professor wants to screen a movie to her class of 300 undergraduate students. 300, remember that number. I will come back to it.
Basically, it’s allowed by Fair Use (I will elaborate on the conditions later on). She doesn’t have to ask for permission from the filmmaker and doesn’t have to pay anything. It is under the right for knowledge and therefore free.
But is the university exempt from paying the electricity bill for the energy consumed during that course, in order to use the video projector? — Of course not. The university will pay for the electricity, although it was used as part of the right for knowledge (as without electricity, the students were not able to watch the film).
So why is the university paying for the electricity consumed to operate the video projector but not for the video itself?
The answer is simple: because filmmakers have weaker lobbies.
But let’s leave that aside. That’s the situation and it doesn’t seem to change. Both sides (right-holders and educators) must know the ways they can benefit or lose from that anomaly called Fair use (and that’s the last time I will state my own opinion in this post).
When is it considered Fair Use?
Remember the example from above? The professor who shows movies to her class?
It is easy to consider it Fair Use, because of the purely educational context: the movie was shown as part of the class, the professor used it as a quotation from a textbook. She didn’t make a profit from that screening, didn’t charge admission (the tuition is not considered admission fee, as it is not connected directly to the screening), and was probably not showing the whole movie but only the relevant part. Well, all of these sum up to a clear case of fair use.
Size doesn’t matter
The number I quoted earlier (300 students) was actually a small trap. There is a rumor that Fair Use can be considered for a screening of up to 50 people. The rumor goes on and states another imaginary figure like “Fair Use of up 20 seconds from a movie”.
Wrong and wrong.
Fair use is defined by the context, not by the numbers
A screening of a 60 minutes movie to 300 students during a course is considered Fair Use because of the context, which is defined in the US law as Face to Face screening, no matter the size of the class or the length of the video.
Entertainment is not Fair Use
Let’s say the mathematics teacher in my son’s school is absent (which happens much too often-:)).
The principal goes in and tells the pupils they can watch a movie during those 60 minutes because it’s too hot to play basketball outside.
This is NOT Fair Use. There’s no educational purpose or benefit in that screening, beyond assuring the principal some peace of mind and silence from this 9-year-old energetic class.
Context is everything
Let’s go back to the university: after the course, the students go to the cafeteria, where the manager thought it would be nice to screen some films in the background. This NOT Fair Use, as there is no educational value in the screening.
So in the same university, one screening is considered Fair Use, while the other is not, although these are some people who are maybe watching the same movie! — What changed is the context.
Public Screening and Fair Use
Those two terms are confusing: we spoke about screening in class, in front of 300 students. Isn’t it a public screening? And if 300 students does not create a public, then what is a “public”?
I get this question many times, especially from organizers of community screenings. They think that if they don’t charge admission for the screening, it is not public.
They are wrong.
The difference between the Fair Use and Public Screening is NOT in the admission fee. In fact, it has nothing to do with it.
Charging admission or not for the screening is a subset of public screening conditions as agreed with the right-holders and not the difference between it and screening under Fair Use.
Here again, the question is of context: the law defines education, research, and criticism/commentary as Fair Use (it also defines parody, but I will ignore this case here, as it is beyond the scope of this post).
Screening in the community is usually for fun. And entertainment, as stated above, is not considered Fair Use.
But wait… — what if we use this screening to promote and explain the organization’s goals? And what if we run a moderated discussion after the screening, whereby the film is used as a trigger?
This is where things become more complicated. Those cases CAN be considered Fair Use. I also heard about screenings where the organizers arranged a discussion panel after the screening, just to be considered Fair Use (relying on the “commentary” part), knowing that no one will stay to participate in the panel (they told me that themselves, as they thought I would laugh and compliment them about the trickery. I didn’t).
The Place of Law
What I wrote so far relates mainly to the US law (Title 17 U.S.C). Many countries in the world follow those guidelines, first of all, because it’s probably the most detailed and also because there are many more precedents.
In an excellent post here in Medium, the writer refers to the situation in the EU (TL;DR — it’s open for interpretation by each EU member state).
Wikipedia elaborates on the difference between countries, but I believe that for the most part, regarding films, the guidelines above should be correct for your country and case.
Fair Use is much more complex than what I wrote here. As mentioned, the purpose of this post is to offer a quick guide, with easy to apply principles.
To learn more about the principles and philosophy of Fair Use, I highly recommend the overview of The Four Factors at Stanford University, written by Rich Stim, who also writes a wonderful blog on intellectual property.