Fair Use Question Of The Month: How Do I Fairly Use YouTube Videos?

In this Fair Use Question of the Month, a documentary filmmaker has questions about the best way to include YouTube videos taken at the recent Tea Party rallies in his upcoming documentary.

Question:

Dear Center for Social Media,

I am starting production on a documentary on the rise of the new Conservative Right, and want to include footage of the recent Tea Party rallies.  There are quite a few videos on YouTube with first-hand documentation of these rallies, and I want to excerpt from them to document that these rallies happened.  I have a few questions, however.  There are videos with ambient sound, sometimes including a song captured playing in the background of a rally, as well as videos where someone has added a soundtrack of well-known songs.  Am I okay to use the videos with an added soundtrack as well as the videos with ambient sound under Fair Use?  Also, there are thousands of individuals at the Tea Party rally, and some individual faces are clearly shown.  Do I need permission from these individuals in order to use their recorded images?

Thanks,

Sam

Answer:

Hi Sam,

Although all Fair Use decisions are case-by-case, The Documentary Filmmakers' Statement of Best Practices and the Online Video code will help you understand what your “safe harbor,” or center-of-consensus decisions are.  They will help you decide how much is OK to take without permission or payment, and with what justification. In general, incidental use, or the use of music that was captured as part of the reality the filmmaker was recording, is clearly covered by Fair Use, as the two codes make clear. However, using entire songs as soundtrack, while it might in some cases be a fair use, is not a clear safe harbor use at this time. Someone really needs a very strong justification to lift an entire song, even when repurposing. In terms of seeking permission from individuals who are in the film, people in a public setting such as a Tea Party rally do not hold any reasonable expectation of privacy, and so you should not have to gain permission from the individuals in the video in order to use their images. Of course, if you decide to zoom in on one of them and make that person a kind of icon or representative of the group, you would be wise to get permission. Good luck with your project!

--The Center for Social Mediia