copyright question - images from films

[Michael Trittipo]

Sarah Hurst wrote:
> I don't think that [stills] from movies . . . 
> would count as being a small proportion of the movie and therefore
> automatically eligible for fair use. I think that any still from a movie is
> the same as a photograph and that you would need the rights . . ..
> The "fair use" element could come in . . .if the journal is a
> non-profit enterprise, but ideally it is best to ask permission . . .

You're certainly right to note that merely the fact of using some small
proportion would not "automatically" make a use fair.  The analysis is
always multi-factored.  For the same reason, there's also no automatic
need for a non-profit to be involved.  The courts have often been held
that for-profit use can be fair, too.  After all, there are four
(non-exclusive) factors listed in the statute, only one of which relates
to profit.  And myriad cases hold that that is not the most important of
the four.

As it happens, some decisions have considered the use of short clips
from movies, and in general the courts did use the “length of time out
of the whole movie” when addressing the “amount and substantiality”
factor, not a "100% of X frames" one. 

For example, Elvis Presley Enterprises, Inc. v. Passport Video (9th Cir.
2003), in the “amount and substantiality” section of its discussion
referred to the defendant's “use of clips [being] in most cases of short
duration,” mentioned one exception as “play[ing] for over a minute,” and
noted that other clips “play for more than just a few seconds.”  Under
an analysis that treated each frame as 100% of a whole photograph, such
discussion would have been unnecessary, indeed pointless.

Similarly a few years earlier and on the other side of the country, the
district court in Monster Communications, Inc. v. Turner Broadcasting
System, Inc. (S.D.N.Y. 1996) when discussing the extent factor wrote:

“The allegedly infringing portions of Story consist of nine to fourteen
film clips aggregating a minimum of 41 seconds and a maximum of one to
two minutes, which is 0.7 to 2.1 percent of the film. A number of the
allegedly infringing clips are less than three seconds long. From _any_
quantitative standpoint, the allegedly infringing use is small.”

[_Emphasis_ added].  At a minimum, one must conclude that no lawyer
presented to the Monster court a “quantitative standpoint” in terms of
frames, and that no internal clerk for the court suggested “any” such
potential standpoint.  The court used percent by time.

The Ninth Circuit's decision in Presley was not novel for it.  A year
earlier, in Los Angeles News Service v. CBS Broadcasting, Inc., (9th
Cir., 2002), the Court of Appeals had considered how much of an original
had been used in certain clips in terms of length of time, and whether
the clips were the "heart" of the copyrighted work.  The “heart”
discussion would not have been needed if a “100% of each of X frames”
analysis had suggested itself as more appropriate.

I don't claim that a frame=photograph analysis is impossible; only that
the decisions noted did not use it. 

In the end, that's probably not determinative.  A more important part of
the analysis is likely to be one only alluded to once before: that it is
a bit hard for a still or two published on paper in a journal to
function as a substitute for the original work.  As the Presley court noted:

“More importantly for the first fair-use factor, however, is the
"transformative" nature of the new work. Specifically, we ask "whether
the new work. . . merely supersedes the objects of the original
creation, or instead adds something new, with a further purpose or
different character . . .. The more transformative a new work, the less
significant other inquiries, such as commercialism, become.”

It would be a relatively rare case in which a printed still or two would
provide the same entertainment value as projected moving pics (or in
which the nature and purpose of the work using the still would be the
same nature and purpose of the moving pics).  I don't claim it would be
impossible for such a case to exist, but I suggest it would be unusual,
defined by its facts. 

Of course, I'm not providing any legal advice here, only noting what
some courts have done when considering movies.  And I'm not urging
anyone to avoid seeking permission.  People and publications have
different perceptions of risk and different tolerances for it. That's
true even if they know the precedent equally well.  Seeking and
obtaining permission reduces the risk to zero; familiarity with the
precedent can sometimes save the cost and time of seeking permission, if
one can accept _some_ non-zero risk.

I'm a bit surprised that a U.S. journal would ask a Canadian professor
to check on U.S. copyright law.  For that matter, I have some question
whether U.S. law is all that need be considered.  But the discussion has
probably already given Professor Kononenko some food for thought and
direction for further checking if desired.

Michael Trittipo
Minneapolis, Minnesota

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