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Fair Use Question of the Month: The Material I Want to Use Has Unlicensed Footage In It

QUESTION:

Dear Center for Social Media,

I'm working on a documentary film that makes substantial use of video footage and photographs, all of which was shot by one person (the subject of my film), and all of which I have permission to use. Here's my question: the subject of the film took his video footage and pictures and cut together music videos, and I'm very sure he didn't license the music. I'd like to be able to use some pieces of the music videos in my film, because I feel they are critical to illustrating certain points I'd like to make (namely, about his life as a soldier in Iraq and Afghanistan, and how he was developing as a filmmaker and artist). Is there any way incorporating these music videos into my film could be considered fair use? Or are my only options to either take out the music or license the songs he used? Can it be fair use if the archival material I'm using makes illegal use of copyrighted material?

Thanks!

Audrey

ANSWER:

Dear Audrey

This is a great question. The fact that your unlicensed use of material is "second-hand" or "derivative" shouldn't matter to the analysis. What does matter is the story you can tell about why you're using the content. As always you need a clear repurpose, and you wouldn't want to be exploiting the music for aesthetic reasons or as soundtrack. As long as you're confident that the way you are planning on using the material falls under fair use, you should be in the clear!

Center for Social Media