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Fair Use Question About Incidental Use

QUESTION:

Dear CSM, I'm editing a documentary about an aspiring young football player. An interview occurs in a hotel room, where he happens to be watching an NFL game on broadcast TV. In referencing the Documentary Filmmakers’ Statement of Best Practices in Fair Use, in particular the third class of situations (capturing copyrighted media content in the process of filming something else), and the fourth limitation (the captured content does not constitute the scene's primary focus of interest), I feel comfortable that when the tv and game appear in the background, it's Fair Use. But when the filmmaker captured closeup material of the copyrighted game and wants to use this while we hear the subject talking, does this breach the threshold of becoming the primary focus of the scene's interest? Is this still "Fair Use"??



Thanks,

-Ted

ANSWER:

Ted, your question is a good one. Does the close up have a logic and
reason within the documentary scene? Does it explain something about
what is going on? Is what the guy is saying related in some way or
does the imagery help us understand anything about the scene or
character?



OR is the imagery used in order to perform the same function as the
original material--to entertain audiences with football? If it's the
latter, I would guess filmmakers will say, you haven't "transformed"
the use.



OR is the imagery being used as an aesthetic device, perhaps as a
transitional element, disconnected from the documented moment? In that
case, filmmakers said in the Statement that it's no longer really
incidentally captured, it's no longer an unavoidable part of the
scene, and moving on its way out of a Fair Use category as far as
they're concerned.



- The Center for Social Media



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