Tim wrote in with a question about his movie reviews channel on YouTube.
I'm Entertainment Lawyer Gordon Firemark, and this is Asked and Answered, where I answer your questions, so you can take your business in entertainment and media to the next level! My answer in just a sec…
So here's what Tim wrote in the comments on my YouTube channel…
“A friend and I want to start a YouTube channel that reviews movies. We want to give facts, actors, and other details about the featured movie, as well as put 2-3 short clips from that specific movie. How can we do this legally and without getting a copyright strike on our YouTube channel?”
First off, the best way to get questions to me is via https://firemark.com/questions, that way you get notified as soon as I post an answer via video. And you get subscribed to my free email newsletter, where I provide all kinds of other free, useful information.
OK, here goes…
Movie Reviews in electronic media have a long history of using clips, stills and other material from the the films they're reviewing. TV review shows, radio reviews, and what have you… All of them have done this. In most cases, the studios have provided the clips as part of the press-kit for the films. After all, they want to get these films out there for the public to know about, so they'll come and see them. That's how the studios make money.
So.. Start by contacting the major studios and film distributors and asking to be added to the circulation list for their Electronic Press Kits (EPK for short). Sometimes you can find the EPKs on the movie websites, so have a look around
Now if you get the clips this way, then you'd be operating under a license from the copyright owner… And as long as you comply with whatever terms they require, you should be fine.
But, small snippets used in the context of a bona-fide movie review will most likely constitute FAIR USE, and therefore NOT copyright infringement. The trouble is, it's risky to rely on Fair Use in these situations, since that determination is typically made on a case-by-case basis by a Judge or Jury… Which means you're already embroiled in a lawsuit by the time you get to present the defense.
You may also want to have a look at my “Brief Explanation of Fair Use” video: https://firemark.com/fairuseinbrief for a bit more detail.
The good news is that a recent court ruling requires copyright owners to make a good-faith determination about fair use BEFORE issuing a DMCA takedown. AND, if they do issue a takedown, you'd have a valid basis to issue a counternotice, and get the video reinstated.
YouTube’s strike policy is somewhat flexible, and they've recently indicated that they'll even help support users who have fair use claims. (see http://www.zdnet.com/article/google-announces-legal-support-for-youtube-fair-use-copyright-battles/)
So, my advice is: See if you can get official press/PR copies of the footage you want to use, and be careful to comply with the film owners' requirements, but even if you're not able, consider whether your use falls within the fair use defense/exception to copyright infringement, and document your decision making process.
You may want to consider getting some Errors and Omissions insurance to cover you and legal fees if you're sued.
And, of course, contact me if you need further analysis and advice. I can prepare a formal opinion letter about your videos.
So if you have any question about entertainment law or business that you’d like to see answered here, send it over by or visiting https://firemark.com/questions
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