Movie footage and fair use for a video review

Question

Thousands of people review movies daily on services such as YouTube. Most of these are by independent, unfunded individuals. So, I doubt those individuals have permission from movies' copyright holders.

There is a large gray area here. On one end, if one were to post an entire movie on YouTube, that would obviously be illegal. On the other, one could post a blank video with only a voice-over review. I believe fair-use would allow this.

Now, what about in between? Some examples, in all cases assume that there is a voice-over talking about the content of the film:

• A review that consists of still images taken directly from the movie.
• A review that consists of short clips taken directly from the movie. I have used sequences of the copyrighted material.

Either way, assume that the videos are monetized, through services such as YouTube Ads.

After several hours of research, I cannot find the answer. There must be a line between legal and illegal, however vague it may be. Is there?

Another factor I have thought about is the source of the content. Not sure how that would play into this.

Answer 1

The line is not between "legal" and "illegal" but between "fair use" and "infringement". Note that infringement is (usually) a tort, not a crime, and nothing happens unless and until the copyright holder chooses to take action.

Also, the line on fair use is intentionally one of the most fuzzy in law, it is always dependent on the specific facts of the situation.

All that said, commentary and criticism is one of the central purposes of fair use, and is in general quite likely to be a fair use. More specifically, if the review:

• Comments on the movie being reviewed, it does not just summarize the plot;
• Uses only those stills or clips needed to illustrate or support the point(s) that the review is making;
• Makes specific comments on each scene or shot included in the review;
• Clearly credits the movie and its publishers;
• Makes it clear what is part of the movie, and what has been added by the reviewer;
• includes only a relatively small part of the over all movie being reviewed;
• Does not serve as a replacement for the movie. That is, most people will not feel after seeing the review that they have in effect seen the movie, and that they have no need to actually buy a ticket or rent a video to experience it. Because of this including any clip that might be considered "the heart of the work" or the "vital scene", particularly any big reveals, might be unwise.

then the review is quite likely to fall under fair use. It does not matter if the review is formatted as a voice-over, or as a talking head intercut with clips, or in some other way. Monetizing the review will not matter much, unless perhaps the main reason for people to watch the review is to see clips.

I m not sure what you mean by "the source of the content" Surely the source of any clips or stills in=s the movie. If they were obtained via a pirate site, that will probably not matter unless the review links to the pirate site, which it should not do.

Answer 2

I'd say first of all that you're probably making this more difficult than it needs to be.

Movie studios aren't normally going to be interested in shutting down movie reviews. They want you to talk about their movies, and they want you to show clips from their movies -- so much so that many of them will simply add you to their press list just for asking.

If you ask to be put on their list of electronic press kits, the studios will proactively send you stills and clips for inclusion in your reviews. In that case, you're operating under a license from the studio, and there's no need for a fair-use inquiry.

But even if you can't get on to that list, it's pretty clear that what you're talking about would be fair use. You can read more about the standards for a full fair-use analysis here, but the key question in your situation is going to be whether the use is transformative, and it's pretty firmly established that commentary is transformative:

The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative."

Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). See also Video Pipeline, Inc. v. Buena Vista Home Entm't, Inc., 342 F.3d 191, 200 (3d Cir. 2003) ("The fact that a substantial portion, indeed almost all, of the infringing work was copied verbatim from the copyrighted work with no additional creative activity reveals a dearth of transformative character or purpose.").