When it comes to video marketing, there are two legal defenses in U.S. for using somebody else's copyrighted work in your video without first receiving expressed permission, those being parody and fair use. In my continued "Is My Video Legal?" video series, I feature a special Q&A between a video marketer and a lawyer to answer the question: Is it legal to do a "spoof video" of a popular movie to promote themselves professionally?
A spoof can refer to a type of parody by imitating something that's already familiar with your intended audience. A spoof can fall in the range of light-hearted and playful, to satiric and challenging.
Video Q&A - Is My Spoof Video Legal?
Today's video submission falls in the lighter end of the spoof-spectrum from video marketer conference speaker, and friend-of-ReelSEO, Casey Zeman. Casey and his wife Diana Newton are also professional actors who recently created a spoof video on the movie "The Adjustment Bureau," which they've titled and promoted on their YouTube channel as "The Bureau Adjustment.”
DISCLAIMER: The following information is presented for general information purposes only, and should not be construed as, or substituted for, professional legal advice. For that, we strongly recommend you consult with an attorney!
~Video Removed from YouTube~
Casey has two law-related questions regarding this video:
- Can creating a spoof video of a popular movie bring about any legal ramifications?
- Is it a copyright violation to feature an exact image from the original popular movie in your own public video?
I shared these questions with entertainment and new media law attorney (and another friend of ReelSEO), Gordon P. Firemark. Below is Gordon's response, which you can also listen to in our video.
What Has Copyright Protection in a Video?
"Every new work of original creation is automatically protected by copyright law," says Gordon. "So if you use something in your video project that comes from someone else's work of artistic creation – like a film, or video clip, or music, or photographer or whatever, then you need to obtain permission – a license from the owner of the copyright of that work.”
Gordon explained more about the two defenses in the United States law on copyright infringement that have often applied to online video marketing: #1 Parody and #2 fair use.
Copyright Exception #1: Parody
"Parody is a work created to mock, comment on, or make fun of an original work, it's subject, it's author, it's style, etcetera – by means of a humorous or ironic imitation. The courts have historically held that parodies are a protected area of speech, and they can take enough of the original work that they're poking fun at, to conjure up an original in the mind of the viewer, or the reader or whatever." said Gordon.
Gordon explained that in order for a video be considered a parody, it has to be spoofing or making fun of either the original work, or its author, or something closely-related. "Otherwise, it's not a parody," said Gordon.
Copyright Exception #2: Fair Use
Gordon explained that even if the video isn't strictly a parody of anything – for example, maybe it's not making fun of the original work, but of something else entirely, it might still be protected as a form of fair use.
"Fair use is a term that's often bandied about by folks who think its carte blanche to take whatever they want and use it however they want. Well that's really not how it works." said Gordon. "Fair use is a defense to copyright infringement; and that means by the time you get to argue about fair use, you're involved in a lawsuit. So that's troublesome point number 1.”
In fair use, the courts look at four different factors, and they weigh them all in determining if the defense is valid in a particular case:
- The purpose and character of the allegedly infringing work… "so an educational purpose or critique is going to get better treatment than a commercial kind of use, like a TV ad or radio commercial or something like that, or if you're just selling copies of the original. Now, some courts go further on this on this first element, and take a look at whether the use is "transformative." That is, does the new work transform the work in some way that makes a new and different entirely kind of work?
- The nature of the original work. "If the original is very commercial in it's nature, versus very artsy in it's nature, then that will tip the scales somewhat differently." (This also goes to factor #4, the effect of the market on the original work.)
- The amount and substantiality of the portion taken by the infringing work. "If you take the whole thing – the whole enchilada -- that's going to work against a finding of a fair use; while taking very small bits goes in favor of that finding. But small bits can be very substantial. So it's not just the length of the clip that's a consideration. You also have to look at how important to the whole original that little bit is. Like, for the hook of a song, for example, could be considered very substantial, even though it's only a few bars.”
- The effect on the market for the original work. "Courts look at how the alleged infringing use is going to affect the value of that original. So in an industry where clips can be licensed and bought and sold, and so on, the loss of the value of such a sale might weight against a fair use. But where there's no such market for that kind of thing, then things might go the other way.”
Video Marketing Tips on Copyright Law from a Non-Lawyer (Me)
One again, this article should not be construed as, or substituted for, professional advice from an actual lawyer. Below is just general information from my own experiences with the law while doing online video:
- Understand what the law is. Get at least a basic primer on intellectual property law and entertainment law – including copyright, trademark, right of publicity, right of privacy, FTC disclosure (transparency), and the legal issues related to your own industry. Just attending one law seminar on intellectual property (IP), new media issues, entertainment law issues, or any combination thereof will really open your eyes.
- Consult with an attorney. You want an attorney who's represented clients in your industry, and who's actually participated in the online video and social media space. Many attorneys will offer an initial free consultation, so be serious in at least looking for one. "If you're in doubt, talk to a lawyer, before you finalize your projects, so we can give you the answers you need and the confidence you need to resolve things." said Gordon.
- If unsure of permission, then wait. Or at least, understand what the risks are and what level of risk you're willing to accept.
- Get insurance. You'll want to have some kind of liability insurance in case you do get sued or suffer any legally related financial damages for your online video activities.
- Free legal video information – Check out ReelSEO's "Video and the Law" column
The Verdict on the Spoof Video – Is it Legal?
"So the answer to his question is really much more complicated than it might seem," said Gordon. "The takeaway is this: Copyright law protects all original works of authorship for a period of time. If you use something created by someone else, then you need permission, unless it's a true parody – in which case, you're only taking a very small portion; and the other... unless it's a fair use, then you wouldn't need that permission either. But, fair use is a judgment call. Unfortunately, you really need to consult a lawyer to make these determinations in any particular instance.”
So while are no quick and easy answers here to substitute for an attorney, Gordon's valuable information should help make video marketers and other video-related professionals better able to work with attorneys when they're ready to take that next important step. I consider it an easy step for us all to be more aware of what the legal issues with online video marketing are, as well as being better informed of what legal resources we can take advantage of. And why not get a legal video education with video, eh?