Re: Fair Use/Short Clips / L

Stephana Colbert asked about fair use of film clips in a video, and about the requirement for permission to use someone's image in a video.

On the former I can't help you, but I think that you will require permissions from each of the copyright holders. It doesn't sound like fair use to me.

On the latter, you MUST have written permission to use a photo or film clip of anyone who appears in your video unless they can be considered public persons (like politicians).

Furthermore, I want to warn you about a hole I see a lot of universities falling into. If you license a bare patent, you can put in your license agreement that the manufacturer must indemnify you for any liabilities due to his manufacturing, marketing, or distribution, or whatever. Most of us add this clause to all of our agreements. However, in the publishing world things are reversed. Here the publisher typically requires that the author (or in this case the owner) indemnify the publisher for any copyright infringements or other liabilities that might stem from the work.

The reasoning for the reversal is decent. In the bare patent licensing case most of the control rests with the licensee, who should therefore indemnify the licensor if his product causes problems. In the case of the publisher, most of the control rests with the author, not the publisher. The publisher pretty much just duplicates and markets what he is sent. So, the person in control, the author, should indemnify the 'innocent' publisher.

For an invididual author this is OK, but for a deep-pockets institution this can be a nightmare. What if one of the beleaguered tobacco companies sues you? What if someone relies upon something mentioned in your educational video about smoking, and then goes on to get cancer anyway? What if your video catches a little glimpse of my face as it pans and I sue you for misappropriation of my image?

A friend asked me about licensing, from a university, a video on how to care for patients with AIDS. I frankly could not imagine a worse scenario. The video was a good one, the tone was thoughtful, temperate, and helpful, and they had a publisher who wanted to go ahead. The video would have been good for the public. I urged her to assign all rights in the venture back to the filmakers, let them know of their duties to obtain sign-offs from people who's images appear (some of which were of course dead), and their duties vis a vis copyright infringement of others. Tell them they are on their own and good luck. The institution will not recoup its costs in the film, but the film will get out to the public, and the institution's deep pockets will not be picked.

Multimedia licensing looks exciting, but I urge you to beware, and to be very very careful about the risks to which you might be exposing your institution.

Martha Luehrmann
Lawrence Berkeley National Lab
MRLuehrmann[_at_]LBL.gov Received on Thu Apr 25 1996 - 23:47:38 GMT