Re: fair use of videotapes

From: ISPJXR <[_at_]ASUVM.INRE.ASU.EDU:ISPJXR@ASUVM.INRE.ASU.EDU>
Date: Tue, 05 Oct 1993 11:09:39 -0700 (MST)

The creation of an edited version of scenes from a commercial videotape would not fall under "Fair Ues" in my view. The creation of anthologies is specifically prohibited under fair use, and editing video or audio from a commercial tape would fall under synchronization rights which are specifically retained by the copyright holder. I have been involved in a number of productions where such material has been desired, and in some cases we have been successful in obtaining synchronization rights either gratus or for a moderate cost. Unfortumnately, in many other cases we have been denied or have received no response from the copyright holder. Creating excerpts is clearly different from use of the entire film, or sequential presentation of excerpts from the videotape (or videodisk as the film is available in this format).

___Jeremy Rowe                         602-965-6375
   University Libraries/Media Systems  602-965-3481 FAX
   Arizona State University            ISPJXR[_at_]ASUACAD
   Tempe, AZ 85287-1905                ISPJXR[_at_]ASUVM.INRE.ASU.ED

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From: Kenneth Crews <CREWS%SJSUVM1.BITNET[_at_]cmsa.Berkeley.EDU> To: Multiple recipients of list <cni-copyright[_at_]cni.org> Subject: Re: fair use of videotapes X-Listprocessor-Version: 6.0a -- ListProcessor by Anastasios Kotsikonas X-Comment: CNI Copyright and Intellectual Property Forum

Rita Reusch raises a most interesting and troublesome situation involving the possible fair use of commercial videotapes in the classroom--including making a videotapes of the selected scenes only. I have seen this issue raised in other similar situations. I even have seen faculty attempt to obtain permission from the studios, only to have their inquiries completely ignored. The studios are well prepared to address the usual commercial uses of their materials, but non-profit uses do not usually stir much interest (As a lawyer for ten years in Los Angeles I did much work for the entertainment industry, and I saw the permission system from that side as well). Hence, Rita's situation calls for a fresh fair use analysis:

PURPOSE: The use she proposes is for non-profit, educational purposes--a favored use under fair use.

NATURE: The nature of the material is commercial with an easily accessible market for sales and rental of tapes. This factor may not be so favorable.

AMOUNT: The copying of selections is favored--she is not copying anything close to the entire tape.

EFFECT: The use does not displace a sale that the studio might anticipate. Indeed, the use of selections in class is a good example of a use that might inspire the students to purchase or rent the video to see the entire work. The case could be easily strengthened by making sure that the school owns an original tape of the entire film. Thus, the tape with excerpts would be based on an actual purchase.

    This analysis is quick and dirty. Much more depth is certainly possible, but I am led to believe that under many circumstances fair use would apply.

    This is also a situation where technology can ease the way through legal entanglements. Perhaps a videodisk can allow the instructor to move expediently from scene to scene without the necessity of making an actual copy of the item as originally purchased. Can someone with more familiarity with videodisks let us know whether such a use is possible or practical?

Kenneth D. Crews
Associate Professor of Business Law
San Jose State University
(408) 924-1342
CREWS[_at_]SJSUVM1.bitnet Received on Tue Oct 05 1993 - 18:12:35 GMT